Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 04/27/2015
Format: 04/27/2015
State of Tennessee v. Levar O. Williams
E2014-01068-CCA-R3-CD

The petitioner, Levar O. Williams, appeals the trial court’s denial of his motion to correct an illegal sentence. Following our review of the briefs of the parties, the record, and the applicable authorities, we conclude that the petitioner failed to file a timely notice of appeal and that the “interest of justice” does not warrant waiver of the timely notice requirement. As a result, we dismiss his appeal.

Bradley County Court of Criminal Appeals 03/19/15
State of Tennessee v. David Muangkhot
M2014-01029-CCA-R3-CD

In January 2005, David Muangkhot (“the Defendant”) pleaded guilty to one count of sale of a Schedule I controlled substance and one count of possession of a Schedule I controlled substance with the intent to sell.  Pursuant to a plea agreement, the trial court imposed concurrent, 10-year sentences and ordered the Defendant to serve his sentence in confinement.  Following the completion of a boot camp program, the Defendant was released and placed on supervised probation for the remainder of his sentence pursuant to Tennessee Code Annotated section 40-20-206.  In April 2014, the trial court issued a violation of probation warrant and, following a hearing, revoked the Defendant’s probation and imposed the Defendant’s original sentence.  On appeal, the Defendant argues that the trial court abused its discretion by ordering him to serve his sentence.  Upon review, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 03/19/15
Christopher M. Black v. State of Tennessee
M2014-01607-CCA-R3-PC

In 2006, the Petitioner, Christopher M. Black, was convicted by a Davidson County jury of two counts of aggravated rape and two counts of aggravated robbery, for which the Petitioner received an effective sentence of 50 years in the Department of Correction.  On direct appeal, this Court affirmed the Petitioner’s convictions and sentence.Thereafter, the Petitioner filed a petition for post-conviction relief, which was denied following a hearing.  On appeal from the denial of post-conviction relief, the Petitioner contends that he received ineffective assistance of counsel based upon trial counsel’s failure to hire a DNA expert to analyze the evidence against the Petitioner.  Following our review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 03/19/15
Mary Kindred v. National College of Business and Technology, Inc., et al.
W2014-00413-COA-R3-CV

A former student at National College of Business and Technology, Inc. (“National College”) sued the school and its director for breach of contract, intentional infliction of emotional distress, and violation of the Tennessee Consumer Protection Act following the cancellation of her enrollment due to the fact her student file did not contain an official copy of her high school transcript or the equivalency certificate as required by the Tennessee Higher Education Commission. Plaintiff’s claims for intentional infliction of emotional distress and violation of the Tennessee Consumer Protection Act were dismissed pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief could be granted. Thereafter, Defendants moved to summarily dismiss Plaintiff’s remaining claim for breach of contract. The trial court found that Defendants negated two essential elements of Plaintiff’s breach of contract claim, namely, breach and damages, and summarily dismissed that claim. We affirm.

Shelby County Court of Appeals 03/19/15
In Re Conservatorship of Karen Klyce Smith
W2014-01044-COA-R3-CV

The substantive issue in this case is whether the decedent was a domiciliary of Tennessee or Texas at the time of her death. Because Appellant was not an original party and did not file a motion to intervene in this case, we dismiss this appeal for lack of standing and remand the case for further proceedings as are necessary and consistent with this Opinion.

Shelby County Court of Appeals 03/19/15
State of Tennessee v. James Pennock
W2013-02526-CCA-R3-CD

The Defendant-Appellant, James Pennock, was convicted by a Dyer County jury of three counts of sale of a Schedule II controlled substance. On appeal, the Defendant argues that (1) the evidence is insufficient to establish the Defendant's identity as the person who committed the offenses; (2) the trial court erred in instructing the jury regarding eyewitness identification testimony; and (3) the trial court erred in allowing the co-defendant, Nora Gibson, to testify without proper notice provided to the Defendant. Upon our review, we affirm the judgments of the trial court.

Dyer County Court of Criminal Appeals 03/19/15
Thomas Edward Kotewa v. Brenda Jones, Warden
W2014-01290-CCA-R3-HC

Pro se petitioner, Thomas Edward Kotewa, appeals the summary dismissal of his petition for habeas corpus relief by the Lauderdale County Circuit Court. In this appeal, the Petitioner argues that the habeas corpus court erred in denying his petition because the trial court lacked subject matter jurisdiction to accept his plea of guilty. Upon our review, we affirm the judgment of the habeas court.

Lauderdale County Court of Criminal Appeals 03/19/15
In Re: Anna D.
M2014-00995-COA-R3-PT

This case involves the termination of a biological father’s parental rights to a young child. The trial court granted the mother and step-father’s petition to terminate the father’s rights and to allow the step-father to adopt the child. Father appeals. We affirm the trial court’s judgment. The evidence is clear and convincing that (1) the father abandoned the child by failing to visit and failing to support her for four months preceding the filing of the petition and (2) it is in the child’s best interest that the father’s parental rights be terminated.

Maury County Court of Appeals 03/19/15
Allen Mathis, et al v. City of Waynesboro
M2014-00864-COA-R3-CV

This appeal arises from the trial court’s grant of summary judgment in favor of Defendant, the City of Waynesboro. Plaintiffs filed this lawsuit on May 5, 2006, alleging that acts and/or omissions of the City caused injury to them on May 6, 2003, when a creek near their home flooded and damaged their property. The City moved for summary judgment. The trial court found that the material facts were not in dispute and that Plaintiffs’ lawsuit was time-barred by the Tennessee Governmental Tort Liability Act’s statute of limitations. Moreover, the trial court found that the City was immune from liability for the claims. Accordingly, the trial court granted summary judgment in favor of the City. After thoroughly reviewing the record on appeal, we affirm the judgment of the trial court.

Wayne County Court of Appeals 03/19/15
In Re: Caleb B.
M2013-02564-COA-R3-JV

This case involves a custody dispute between two parents and a non-parent intervener. Father originally filed a petition against Mother requesting a change of custody, but the couple reconciled and began living together while the litigation was pending. Thereafter, the maternal grandmother intervened, seeking custody of the child. The trial court found that Father presented a substantial risk of harm to the child based on his prior and current criminal history but granted Mother custody of the child. On appeal, Grandmother argues the court erred in not finding that Mother also presented a risk of substantial harm to the child because Mother lived with Father. We affirm the trial court.

Montgomery County Court of Appeals 03/19/15
State of Tennessee v. Charles B. Davis
M2013-01903-CCA-R3-CD

A Davidson County jury convicted Defendant, Charles B. Davis, of one count of theft of property valued between $1,000 and $10,000, one count of theft of property valued under $500, and one count of employing a firearm during the commission of a dangerous felony.  In addition, the Defendant pleaded guilty to one count of aggravated burglary but was acquitted of an additional count of aggravated burglary.  The trial court sentenced the Defendant to an effective sentence of twenty years in the Tennessee Department of Correction as a Range II, persistent offender.  On appeal, the Defendant asserts that: (1) the trial court erred in denying the Defendant’s motion for judgment of acquittal as to Counts 2 and 5 as there was insufficient evidence to support his convictions for theft of property and employing a firearm during a dangerous felony and (2) the trial erred when it denied his motion for new trial because the trial court failed to properly function as the thirteenth juror as the verdicts were against the weight of the evidence. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Davidson County Court of Criminal Appeals 03/18/15
State of Tennessee v. Marquize Berry
W2014-00785-CCA-R3-CD

The defendant, Marquize Berry, appeals his Shelby County Criminal Court jury conviction of attempted second degree murder, claiming that the evidence was insufficient to support his conviction. We affirm but order certain clerical amendments to the judgments.

Shelby County Court of Criminal Appeals 03/18/15
State of Tennessee v. Marquize Berry-Concurring In Part, Dissenting In Part
W2014-00785-CCA-R3-CD

I concur in the excellent lead opinion by Judge Witt. I write separately, however, because I do not agree that the judgment form for Count 3 needs to be corrected. In this case, the learned trial judge entered a judgment on Count 3 to effectuate the jury‟s finding of guilty of a violation of Tennessee Code Annotated section 39-17-1324(b)(1), the offense of employing a firearm during the commission of a dangerous felony. When an offender does not have a prior felony, the punishment for violation of this statute is at least a mandatory minimum six-year sentence in the department of correction. Tenn. Code Ann. § 39-24-1324(h)(1).

Shelby County Court of Criminal Appeals 03/18/15
State of Tennessee v. Derishon Wadlington
W2013-02521-CCA-R3-CD

The defendant, Derishon Wadlington, was detained in a Union City Walmart store, after being observed attempting to leave the premises without paying for a belt, which she had in her possession. Union City police officers were called and, taking the defendant into custody, found a small clear bag containing a green leafy substance in her purse. At the jail, her purse was inventoried and found to contain a large clear bag containing a white powder, which was determined to be cocaine. She filed a motion to suppress the evidence, which was granted after the trial court determined that the officers lacked probable cause to arrest the defendant. The State appealed. Following our review, we conclude that the officers had probable cause to arrest the defendant, and, thus, the subsequent search of her purse was lawful. Accordingly, we reverse the trial court’s suppression of the evidence and remand the matter to the trial court.

Obion County Court of Criminal Appeals 03/18/15
State of Tennessee v. Derishon Wadlington-Dissenting
W2013-02521-CCA-R3-CD

I respectfully dissent. First, I disagree with the majority’s conclusion that the trial judge determined that the officers lacked probable cause to arrest Defendant. The majority quoted the trial court’s ruling, which I interpret bases the decision on the fact that the officers took Defendant into custodial arrest in violation of a statute that mandated the issuance of a citation in lieu of custodial arrest. The trial court’s reasoning was that since custodial arrest was invalid, the resulting search was invalid, and thus all evidence found in Defendant’s purse must be suppressed.

Obion County Court of Criminal Appeals 03/18/15
Pamela Barkley, et al. v. Shelby County Board of Education
W2014-00417-COA-R3-CV

Action under the Tennessee Governmental Tort Liability Act to recover for injuries sustained in a slip and fall at a school operated by the Shelby County Board of Education. In a bench trial, the court held the school board 60% liable and plaintiff 40% liable and awarded plaintiffs damages totaling $29,400. The Board of Education appeals the holdings that it was negligent, that its immunity was removed, and that the plaintiff was less than 50% at fault for her injury. While the evidence does not preponderate against the finding that plaintiff fell on water in the school hallway, there is no evidence that the Board had notice of the water; consequently, we reverse the judgment of the trial court and dismiss the case.

Shelby County Court of Appeals 03/18/15
In Re Agustine R. et al.
E2014-01091-COA-R3-PT
This is a termination of parental rights appeal brought by the father. The trial court found clear and convincing evidence to support termination of the father’s parental rights on the statutory grounds of abandonment for failure to remit child support and failure to comply with the permanency plans. The court also found that termination of the father’s parental rights was in the best interest of the children. The father appeals. We affirm. 
Sevier County Court of Appeals 03/17/15
State of Tennessee v. William Kenneth Lawson
M2014-00612-CCA-R3-CD

The defendant, William Kenneth Lawson, appeals the revocation of his probationary sentence. He pled guilty to possession of a controlled substance with intent to deliver and violation of his habitual traffic offender status. As a result, he was sentenced to an effective term of eight years on supervised probation. Subsequently, a violation warrant was issued alleging that the defendant had violated the terms and conditions of his probation agreement by being arrested on new charges. Following a hearing, the trial court ordered revocation of the probation and that the defendant serve the remainder of his sentence in incarceration. On appeal, the defendant contends that there is not sufficient evidence in the record to support the court’s finding that a violation occurred. Following review of the record, we conclude that there was no abuse of discretion in the court’s decision to revoke probation. As such, the judgment of the trial court is affirmed.

Warren County Court of Criminal Appeals 03/17/15
State of Tennessee v. James R. Bristow
M2014-00595-CCA-R3-CD

Defendant, James Bristow, was charged by indictment with vehicular homicide by intoxication, vehicular homicide by recklessness, driving under the influence of an intoxicant (DUI), and DUI per se.  Defendant pleaded guilty to vehicular homicide by intoxication with an agreed nine-year sentence, and the manner of service to be determined by the trial court.  The remaining counts were dismissed in accordance with the agreement.   After a sentencing hearing, the trial court ordered Defendant to serve his nine-year sentence in confinement.   On appeal, Defendant argues that he should have received an alternative sentence.   After a thorough review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Clay County Court of Criminal Appeals 03/17/15
State of Tennessee v. Marcus Traveno Cox, Jr.
M2014-01442-CCA-R3-CD

The Defendant-Appellant, Marcus Traveno Cox, Jr., was indicted by a Marshall County Grand Jury for one count of solicitaion of aggravated perjury and one count of improper influence of a juror, Class A misdemeanors. Cox entered an open plea of guilty to solicitation of aggravated perjury, and count two was dismissed. After a sentencing hearing, the trial court imposed the maximum sentence of 11 months and 29 days in the county jail, to be served consecutively to his sentences in another case. The sole issue presented for our review is whether the trial court erred in sentencing Cox. Upon review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 03/17/15
Terrence Moore Robinson, Jr. v. Susan Kathleen Robinson
M2014-00431-COA-R3-CV

In this post-divorce action, Mother appealed from the trial court’s decision to change the designation of primary residential parent to Father. After an evidentiary hearing, the trial court found that a material change in circumstances had occurred based on the child’s recent athletic development and its impact on his social development. The trial court also found that making Father the primary residential parent was in the best interests of the child. In making the best interests determination, the trial court made particular note that the parties’ fifteen-year-old son preferred to live with Father. Mother appealed, arguing that there was no material change in circumstances and that the trial court erred by failing to consider the importance of continuity and by allowing the preference of the child to control the outcome of the best interests determination. Because we find that the evidence does not preponderate against the trial court’s findings and that there is no error in the trial court’s conclusions, we affirm.

Williamson County Court of Appeals 03/16/15
Melissa L. Taylor Et al. v. James T. George, II et al.
E2014-00608-COA-R3-CV
The plaintiff filed this action seeking to enforce a judgment for child support and alimony entered in South Carolina and subsequently domesticated in Tennessee. One defendant serves as the trustee of a testamentary trust while the other defendant is a trust beneficiary and the judgment debtor. Before this action proceeded to trial, the trustee distributed all of the respective trust assets to the beneficiary/debtor. As the trial court determined that there was insufficient evidence of a fraudulent conveyance or civil conspiracy, it dismissed the plaintiff’s claims against the trustee. The trial court upheld the plaintiff’s judgment against the beneficiary/debtor and awarded pre- and post-judgment interest thereon. The plaintiff appealed. Discerning no error, we affirm the trial court’s judgment. 
Knox County Court of Appeals 03/16/15
James Autwell v. Back Yard Burgers, Inc., et al.
W2014-00232-SC-R3-WC

The employee was injured in a motor vehicle accident while driving from doing a personal task in Alabama to a meeting for his employer in Mississippi.  The employer denied his workers’ compensation claim, so the employee filed this lawsuit.  The trial court awarded benefits based on a finding that the claimant was a “traveling employee.”  Its holding also implied, in the alternative, that the employee was on a “special errand” for the employer.  The employer has appealed.  The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51.  We conclude that the injury did not arise from or in the course of the employment, and therefore, reverse the award of benefits to the employee

Shelby County Workers Compensation Panel 03/16/15
Louis Dancy v. State of Tennessee
W2014-00330-CCA-R3-PC

The Petitioner, Louis Dancy, appeals the post-conviction court‟s denial of relief from his conviction for second degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel at trial. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/16/15
State of Tennessee v. Jeremy Wendell Thorpe
M2014-00169-CCA-R3-CD

Following a jury trial, Defendant, Jeremy Wendell Thorpe, was found guilty as charged of aggravated arson, a Class A felony, and vandalism of a structure of a value of sixty thousand ($60,000.00) dollars or more, a Class B felony. He was sentenced to concurrent sentences of seventeen years for the aggravated arson conviction and nine years for the vandalism conviction. In his appeal of right, Defendant challenges the legal sufficiency of the evidence to support his conviction for aggravated arson. Specifically, Defendant argues that the State failed to prove beyond a reasonable doubt that he “knowingly” committed the offense. An integral part of this issue is Defendant’s assertion that aggravated arson requires a “result-of-conduct” knowing mens rea. Defendant asserts there are conflicting opinions of this Court as to this issue. The State initially argues that Defendant’s motion for new trial was filed one day late, and that as a result, the notice of appeal was not timely filed. The State urges this Court to dismiss Defendant’s appeal. In a reply brief, Defendant concedes his motion for new trial was filed late by one day and although the notice of appeal was also late, the timely filing of the notice of appeal should be waived. The State declined to address Defendant’s argument that aggravated arson is a “result-of-conduct” offense. Defendant does not challenge the vandalism conviction. After a through review of the record, the parties’ briefs, and the applicable law, we conclude that the State’s argument that the notice of appeal was filed late is void of merit. Notwithstanding the fact the State waived argument on the “knowing” mens rea definition for aggravated arson, we conclude that aggravated arson is not a result-of-conduct offense. Following our review of the record, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 03/16/15