Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 06/30/2015
Format: 06/30/2015
State of Tennessee v. John Edward Lewis
M2014-01912-CCA-R3-CD

The Defendant, John Edward Lewis, was convicted of vandalism of property valued at $1,000 or more but less than $10,000, a Class D felony.  On appeal, the Defendant challenges the sufficiency of the evidence as to the value of the damaged property for the purposes of the grade of the offense and restitution.  Upon review, we find that the evidence was insufficient to establish the value of the property damaged.  Accordingly, we reverse the judgment of the trial court and modify the Defendant’s conviction to vandalism of property valued at less than $500, a Class A misdemeanor.  The case is remanded for a hearing to determine the sentence and the amount of restitution.

White County Court of Criminal Appeals 06/05/15
State of Tennessee v. Windie L. Perry
M2014-00029-CCA-R3-CD

In January 2012, a jury convicted Windie L. Perry (“the Defendant”) of two counts of especially aggravated kidnapping, two counts of aggravated child abuse, facilitation of rape of a child, aggravated assault, two counts of false imprisonment, and six counts of reckless endangerment. For these offenses, the trial court imposed an effective 20-year sentence. On appeal, the Defendant challenges the sufficiency of the evidence as it relates to her convictions for especially aggravated kidnapping, aggravated child abuse, facilitation of rape of a child, and aggravated assault. Following review of the record and relevant authority, we reverse the Defendant’s conviction for aggravated assault, because aggravated assault is not a lesser-included offense of aggravated child abuse as charged in the indictment under Tennessee Code Annotated, section 39-15-402(a)(3), and we remand for a new trial on that count. The Defendant’s remaining convictions are affirmed.

Montgomery County Court of Criminal Appeals 06/05/15
Abbas Nejat v. State of Tennessee
M2014-01730-CCA-R3-PC

Abbas Nejat (“the Petitioner”) challenges the denial of his petition for post-conviction relief.  On appeal, the Petitioner argues that he received ineffective assistance of counsel when trial counsel failed to include the transcript of the Petitioner’s Rule 404(b) hearing in the record on direct appeal.  Upon review of the record, we conclude that the Petitioner’s challenge to admission of evidence about his membership in the Kurdish Pride Gang under Tennessee Rule of Evidence 404(b) is without merit.  Accordingly, the Petitioner has failed to show that he was prejudiced by trial counsel’s deficiency.  We affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 06/05/15
Richard A. Berent v. CMH Homes, Inc., et al
E2013-01214-SC-R11-CV

In this appeal, we are asked to overrule established precedent regarding the circumstances under which an arbitration provision in an adhesive consumer contract is rendered unconscionable and unenforceable based on non-mutual remedies, i.e., mandating arbitration for the consumer but reserving a judicial forum for the merchant. This case involves an adhesion contract for the sale of a manufactured home. The contract includes an arbitration provision under which the sellers retain the right to seek relief in a judicial forum for limited purposes. After the buyer took possession of the home, he filed a lawsuit against the sellers for breach of contract, and the sellers filed a motion to compel arbitration. The trial court denied the motion to compel. In reliance on this Court’s decision in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 2004), the trial court held that the non-mutuality of remedies in the arbitration provision rendered it unconscionable and invalid. The Court of Appeals affirmed, also relying on Taylor. We granted permission to appeal to address whether the ruling in Taylor is preempted by the Federal Arbitration Act under the reasoning in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), and to address whether Taylor should be overruled or modified in light of the current majority view in other jurisdictions on the validity of arbitration contracts that include non-mutual remedies. We hold that Taylor did not adopt a per se rule that any degree of non-mutuality of remedies in an arbitration provision in an adhesion contract renders the provision unconscionable and unenforceable. Consequently, the ruling in Taylor is not preempted by federal law. In addition, after reviewing the law in other jurisdictions, we decline to overrule or modify the ruling in Taylor. Applying Taylor to the contract in this case, we conclude that the sellers’ retention of a judicial forum for limited purposes does not render the arbitration agreement unconscionable. Accordingly, we reverse the decisions of the Court of Appeals and the trial court and remand to the trial court for further proceedings. 

Hamilton County Supreme Court 06/05/15
Michael Lee Yarlett v. Roxanne Deette Yarlett
M2014-01036-COA-R3-CV

Mother appeals the trial court’s modification of the parties’ parenting plan and designation of Father as the Primary Residential Parent. We affirm. 

Davidson County Court of Appeals 06/05/15
State of Tennessee v. Matthew Alton King
M2014-01280-CCA-R3-CD

Matthew Alton King (“the Defendant”) entered guilty pleas in case number CR087458 and CR087459 with the length of sentence and manner of service to be determined by the trial court.  After the sentencing hearing, the trial court sentenced the Defendant to an effective sixteen years’ incarceration.  On appeal, the Defendant challenges both the length of his sentences and the denial of alternative sentencing.  Upon review, we affirm the judgments of the trial court.

Williamson County Court of Criminal Appeals 06/04/15
State of Tennessee v. Mark A. Crites
M2014-00383-CCA-R3-CD

The defendant, Mark A. Crites, was convicted of aggravated robbery, a Class C felony.  On appeal, he argues that the evidence is insufficient to sustain his conviction, that he was denied his right to a speedy trial, and that the trial court erred in restricting cross-examination of the victim.  After reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

Williamson County Court of Criminal Appeals 06/04/15
State of Tennessee v. Billy Stewart
W2013-02562-CCA-R3-CD

The Defendant, Billy Stewart, was found guilty by a Shelby County Criminal Court jury of four counts of aggravated cruelty to animals, Class E felonies, and one count of cruelty to animals, a Class A misdemeanor. See T.C.A. §§ 39-14-212, 39-14-202 (2014). The trial court sentenced the Defendant as a Range I, standard offender to two years for each felony conviction and to eleven months, twenty-nine days for the misdemeanor conviction. The court ordered partial consecutive sentences, for an effective four years in confinement. On appeal, he contends that (1) the evidence is insufficient to support his aggravated cruelty to animals convictions, (2) the trial court erroneously admitted evidence at the trial, (3) the State improperly withheld exculpatory evidence, and (4) the trial court erred during sentencing. Although we affirm the Defendant’s convictions, the judgment form for Count 5 erroneously reflects that aggravated cruelty to animals is a Class D felony rather than a Class E felony, and we remand for entry of a corrected judgment for that count.

Shelby County Court of Criminal Appeals 06/04/15
Alicia Denise Fair v. Andrew Jacob Parish
E2014-02337-COA-R3-CV

This is an appeal from an order entered in a post-divorce modification proceeding. Because the order appealed from does not resolve all the claims, rights, and liabilities of the parties, we lack jurisdiction to consider this appeal.

Jefferson County Court of Appeals 06/03/15
State of Tennessee v. Joseph Kantrell Norris
M2014-00857-CCA-R3-CD

Defendant, Joseph K. Norris, was indicted by the Williamson County Grand Jury in an 11-count indictment for one count of attempted second degree murder, three counts of especially aggravated kidnapping, one count of especially aggravated burglary, one count of aggravated burglary, one count of aggravated assault, three counts of aggravated robbery, and one count of reckless endangerment. Defendant entered open guilty pleas to one count of attempted second degree murder, three counts of especially aggravated kidnapping, one count of especially aggravated burglary, one count of aggravated burglary, three counts of aggravated robbery, and one count of reckless endangerment. Defendant agreed he would be sentenced as a Range II offender. The trial court sentenced Defendant to serve 20 years for his attempted second degree murder conviction; 40 years at 100 percent for each of his three especially aggravated kidnapping convictions; 20 years for his especially aggravated burglary conviction; ten years for his aggravated burglary conviction; 20 years at 85 percent for each of his three aggravated robbery convictions; and four years for his reckless endangerment conviction. The trial court ordered that Defendant’s sentences for attempted second degree murder, especially aggravated burglary, and aggravated robbery run concurrently with each other but consecutively to his sentences for three counts of especially aggravated kidnapping, which the trial court ordered to be served consecutively, for a total effective sentence of 140 years. Defendant’s sentences for aggravated burglary and reckless endangerment were ordered to be served concurrently with all other counts. Defendant appeals as of right, arguing that his sentence is excessive. After a careful review of the record on appeal and the parties’ briefs, we affirm the judgments of the trial court.

Williamson County Court of Criminal Appeals 06/03/15
Samuel L. Giddens v. State of Tennessee
M2014-01484-CCA-R3-CD

The appellant, Samuel L. Giddens, filed in the Williamson County Circuit Court a motion to correct his sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that his sentences were illegal because he had not received mandatory pretrial jail credits.  The motion was summarily denied, and the appellant appeals this ruling.  Upon review, we affirm the judgment of the trial court.

Williamson County Court of Criminal Appeals 06/03/15
Steven A. Holdsworth v. Wendy Alford Holdsworth
W2013-01948-COA-R3-CV

This is an appeal from an extremely contentious divorce. The parties married in 1994 and had one child together during the marriage. Husband filed for divorce in 2011. In July 2013, the trial court entered a final decree of divorce. Among other things, the trial court found that Husband dissipated marital assets by writing checks to his girlfriend totaling $15,633 and ordered Husband to reimburse Wife that amount. The trial court also entered a permanent parenting plan that designated Wife the primary residential parent and provided a residential parenting schedule. As part of its permanent parenting plan and based on its calculation of the parties’ respective incomes, the trial court set Husband’s child support obligation and ordered Husband to pay Wife $34,109 in retroactive child support. Finally, the trial court awarded Wife $4,000 per month as alimony in futuro and $461,586 as alimony in solido to reimburse Wife for her attorney’s fees and expenses. Husband filed a notice of appeal challenging the trial court’s rulings.

Prior to Husband’s appeal of the July 2013 order being heard, however, Husband and his girlfriend were arrested when a sheriff’s deputy discovered a marijuana plant growing in their garage. Shortly thereafter, Wife filed a petition seeking to modify the permanent parenting plan to impose certain restrictions on Husband’s parenting time. Among other things, Wife sought to condition Husband’s parenting time on his girlfriend’s submission to and passing of random drug tests. In March 2014, the trial court ruled that a material change of circumstance occurred following the entry of the July 2013 order and entered a modified permanent parenting plan that incorporated Wife’s proposed restrictions. Husband filed a separate appeal from that order, and the two cases were consolidated for appeal to this Court.

Having thoroughly reviewed issues raised by the parties and the record on appeal, we conclude that while the trial court did not err in finding that Husband dissipated marital assets by writing checks to his girlfriend, Wife is not entitled an award equal to the full amount of the dissipation. We modify the amount of the dissipation award to $7,816.53 to reflect Husband’s one-half interest in the dissipated amounts. We affirm the trial court’s allocation of parenting time. While we also affirm the trial court’s decisions to award Wife child support and retroactive child support, we conclude that the trial court based the amount of those awards on a determination of the parties’ respective incomes that is not supported by a preponderance of the evidence. Accordingly, we vacate the trial court’s ruling as to the amount of those awards and remand this matter for further proceedings consistent with this opinion. Next, we reverse the trial court’s award of alimony in futuro. Given the facts of this case, we conclude that Wife is a candidate for transitional alimony and direct the trial court on remand to determine the appropriate amount and duration of such an award. While we affirm the trial court’s decision to modify the permanent parenting plan, we conclude that because Husband’s girlfriend was not a party to the proceedings, the trial court erred in setting conditions on Husband’s parenting time based on her compliance with provisions of the permanent parenting plan. Finally, we conclude that the trial court did not apply a proper legal standard in awarding Wife her attorney’s fees and expenses and reached an illogical result. We reverse the trial court’s award of attorney’s fees. We decline to award attorney’s fees associated with this appeal to either party.

Shelby County Court of Appeals 06/03/15
State of Tennessee v. Marlo Davis
W2011-01548-SC-R11-CD

The Defendant, Marlo Davis, was charged with alternative counts of first degree felony murder and first degree premeditated murder. The jury convicted the Defendant of second degree murder as a lesser-included offense of felony murder and of reckless homicide as a lesser-included offense of premeditated murder. The trial court subsequently merged the reckless homicide conviction into the second degree murder conviction and sentenced the Defendant as a Range II offender to forty years’ imprisonment. The Court of Criminal Appeals affirmed. We granted the Defendant permission to appeal and now address three issues: (1) whether the trial court committed reversible error by admitting as substantive evidence a prior statement and the preliminary hearing testimony of a testifying witness; (2) whether the evidence was sufficient to support the Defendant’s alternative convictions of second degree murder and reckless homicide; and (3) whether the jury’s inconsistent verdicts entitle the Defendant to relief. We hold that the trial court’s admission of the testifying witness’ prior statement and preliminary hearing testimony was not reversible error and that the evidence was sufficient to support the Defendant’s convictions. We also reject the Defendant’s argument that the jury’s inconsistent verdicts entitle him to relief. Accordingly, we affirm the trial court’s judgment of second degree murder.

Shelby County Supreme Court 06/03/15
State of Tennessee v. Marlo Davis
W2011-01548-SC-R11-CD

I concur in the Court’s opinion; however, I write separately to express my concerns about the delay in the trial of this case and the evidentiary problems caused by the delay. Quincy Jones was shot to death on November 9, 2006. The Defendant was arrested on November 13, 2006, and a preliminary hearing was held on January 17, 2007. At the hearing, Jarcquise Spencer testified about what he saw at the time of the murder, including his recollection of seeing the Defendant pull a gun, point it at the victim, and shoot him. 

Shelby County Supreme Court 06/03/15
State of Tennessee v. Mark Deven Dover
E2014-01558-CCA-R3-CD
Mark Deven Dover (“the Defendant”) was indicted for vandalism over $1,000. He pleaded guilty to vandalism over $500, a Class E felony. After a sentencing hearing, the trial court denied the Defendant’s request for judicial diversion and sentenced him to two years’ supervised probation pursuant to the plea agreement. On appeal, the Defendant challenges the trial court’s denial of judicial diversion. Upon review, we affirm the judgment of the trial court.
 
Sullivan County Court of Criminal Appeals 06/03/15
Randy Shelton v. Joseph Construction Company, et al.
M2014-01743-SC-R3-WC

The employee injured his back while performing heavy lifting at work. His workers’ compensation claim was settled with open medical benefits. Several years later, the employee’s authorized physician recommended a surgical procedure. The employer’s utilization review provider declined to approve the procedure, and the Department of Labor (“DOL”) sustained the denial. The employee then brought this action to compel the employer to provide the surgery. The trial court applied the Uniform Administrative Procedures Act (“UAPA”), pursuant to Tennessee Code Annotated section 4-5-101 et seq. (2005), and upheld the decision of the DOL. The employee has appealed. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Upon our review of the record and the applicable law, we reverse the judgment of the trial court. 

Davidson County Workers Compensation Panel 06/03/15
Antwon Cook v. State of Tennessee
E2014-02229-CCA-R3-PC

The petitioner, Antwon Cook, appeals the dismissal of his petition for post-conviction relief. The post-conviction court found that the appeal was filed beyond the one-year statute of limitations and that due process did not necessitate an equitable tolling of the statute of limitations. On appeal, the petitioner contends that equitable tolling is warranted because his plea agreement that allowed for concurrent service of a state and federal sentence is not being honored. Upon our review, we affirm the judgment of the post-conviction court. 

Sullivan County Court of Criminal Appeals 06/02/15
State of Tennessee v. Christopher Dewayne Henson
M2013-01285-CCA-R3-CD

The Defendant-Appellant, Christopher Dewayne Henson, was convicted by a Maury County jury of reckless endangerment.  The trial court sentenced the Defendant to 11 months and 29 days and ordered that he serve 45 days in confinement, with the remainder of his sentence to be served on supervised probation.  On appeal, the Defendant argues that (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred in admitting color photographs of the victim’s injuries; and (3) the trial court abused its discretion in sentencing the Defendant.  Discerning no error, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 06/02/15
State of Tennessee v. Phillip W. Kelley
M2014-01230-CCA-R3-CD

The Petitioner, Phillip Wayne Kelley, appeals the denial of his motion to vacate his convictions by the Circuit Court for Maury County.  On appeal, the Petitioner argues that the trial court erred in denying his motion to vacate his convictions because the trial court did not have jurisdiction to convict and sentence him.  Upon our review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 06/02/15
Jackie D. Seymore v. State of Tennessee
M2014-00895-CCA-R3-PC

The Petitioner, Jackie D. Seymore, appeals the post-conviction court’s denial of relief from his convictions for rape of a child.  On appeal, he argues that he received ineffective assistance of counsel.  Upon review, we affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 06/02/15
State of Tennessee v. Donald Ray Williams
M2014-00877-CCA-R3-CD

A Putnam County jury convicted the Defendant-Appellant, Donald Ray Williams, of attempted second degree murder, a Class B felony; especially aggravated robbery, a Class A felony; and especially aggravated kidnapping, a Class A felony.  The trial court sentenced the Defendant to ten years at thirty percent release eligibility for the attempted second degree murder conviction, twenty years at one hundred percent release eligibility for the especially aggravated robbery conviction, and twenty years at one hundred percent release eligibility for the especially aggravated kidnapping conviction.  The trial court ordered the twenty-year sentences to be served consecutively to one another and concurrently with the ten-year sentence, for an effective forty-year sentence in the Department of Correction.  The sole issue presented for our review is whether the trial court erred in sentencing the Defendant.  Upon review, we affirm the judgments of the trial court.

Putnam County Court of Criminal Appeals 06/02/15
Jeffrey Richard Palmer v. Bill Kees
E2014-00239-COA-R3-CV

The plaintiff tenant in this action rented an apartment from the defendant landlord. Attached to the apartment were a wooden deck and staircase leading to the ground below. The tenant filed suit against the landlord for injuries the tenant sustained when a board on the stairs collapsed, causing the tenant to fall. The trial court granted summary judgment in favor of the landlord because the tenant could not show that the landlord had knowledge of any dangerous condition on the leased premises. The tenant has appealed. Discerning no error, we affirm.

Anderson County Court of Appeals 06/01/15
Gene Earl Stanley v. State of Tennessee
M2014-01659-CCA-R3-PC

The petitioner, Gene Earl Stanley, appeals from the denial of his petition for post-conviction relief from his Sumner County Criminal Court jury convictions of one count of burglary, two counts of theft of property, felony evading arrest, reckless endangerment, driving under the influence of an intoxicant, and driving on a suspended license, claiming that he was denied the effective assistance of counsel.  Because the petitioner failed to establish by clear and convincing evidence facts that would support a conclusion that he was prejudiced by his counsel’s deficient performance, we affirm the judgment of the post-conviction court.

Sumner County Court of Criminal Appeals 06/01/15
Sylvia Laird v. State of Tennessee
M2014-02020-CCA-R3-PC

Petitioner, Sylvia Laird, appeals the denial of her petition for post-conviction relief.  She claims that she received ineffective assistance of counsel when she was erroneously informed that she could not file a motion to withdraw her guilty plea before sentencing.  Consequently, Petitioner argues that a subsequent guilty plea agreement that determined her sentence was unconstitutional because it was entered unknowingly, involuntarily, and unintelligently.  After a careful review of the record, the parties’ briefs, and the applicable law, we conclude that Petitioner has proven that she is entitled to post-conviction relief and, therefore, reverse the decision of the post-conviction court.

Davidson County Court of Criminal Appeals 06/01/15
David Edward Niles v. State of Tennessee
M2014-00147-CCA-R3-PC

Petitioner, David Edward Niles, was indicted for, and ultimately convicted of, first degree murder in Bedford County.  State v. David Edward Niles, No. M2011-01412-CCA-R3-CD, 2012 WL 1965438, at *1 (Tenn. Crim. App. Jun. 1, 2012), perm. app. denied (Tenn. Oct. 17, 2012).  His direct appeal was unsuccessful.  Id.  He subsequently sought post-conviction relief on the basis of ineffective assistance of counsel.  After a hearing, the petition was dismissed.  On appeal, Petitioner insists that the post-conviction court improperly dismissed the petition for relief and that he received ineffective assistance of post-conviction counsel.  After a review, we determine that Petitioner failed to establish that he received ineffective assistance of counsel at trial.  Further, we determine that Petitioner is not entitled to challenge the effectiveness of post-conviction counsel.  Consequently, the judgment of the post-conviction court is affirmed.

Bedford County Court of Criminal Appeals 06/01/15