Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 10/25/2014
Format: 10/25/2014
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
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
Jennifer Scarlett Robbins Goodman v. Temitope "Michael" Bamiji Ogunmola
E2014-00045-COA-R3-CV

This appeal involves Defendant’s motion to set aside a default judgment entered against him in a divorce action. The trial court denied the motion. Defendant appeals. We affirm the decision of the trial court.

Scott County Court of Appeals 09/04/14
State of Tennessee v. Morris Marsh
E2013-01343-CCA-R3-CD

The Defendant, Morris Marsh, was convicted by a jury of first degree premeditated murder and sentenced to life imprisonment with the possibility of parole. See Tenn. Code Ann. § 39-13-202. In this appeal as of right, the Defendant contends (1) that the trial court erred in denying the Defendant’s motion to suppress his statement given to an investigator; (2) that the trial court erred in denying the Defendant’s motion to dismiss the presentment against him; (3) that the trial court erred in denying the Defendant’s pro se motion to remove his appointed trial counsel; (4) that the State failed to disclose an incriminating statement made by the Defendant to a witness; (5) that the trial court erred in admitting audio recordings of prison phone calls made by the Defendant; (6) that the trial court erred in admitting an autopsy photograph of the victim; (7) that the trial court erred in determining that a witness was unavailable and allowing the witness’s preliminary hearing testimony to be presented at trial; (8) that the evidence was insufficient to sustain the Defendant’s conviction; and (9) that the State committed prosecutorial misconduct during its closing argument. 1 Following our review, we affirm the judgment of the trial court.

Johnson County Court of Criminal Appeals 09/04/14
State of Tennessee v. Mark Lipton
E2012-02197-CCA-R3-CD

The Defendant, Mark Lipton, was convicted by a Sevier County jury of aggravated assault and received a five-year sentence. On appeal, the Defendant raises the following issues for our review: (1) whether the evidence was sufficient to support his conviction, citing to the inconsistencies in witnesses’ testimony and to the “physical facts rule”; (2) whether the trial court erred in the admission of improper character evidence, alleging both procedural and substantive errors in that ruling; and (3) whether the trial court properly denied his petition for error coram nobis relief by concluding that the new witness’s testimony was not credible.1 After reviewing the record and applicable authorities, we affirm the judgment of the trial court.

Sevier County Court of Criminal Appeals 09/04/14
James Alfred Reed, Jr. v. State of Tennessee
E2014--00227-CCA-R3-PC

A Monroe County jury convicted the Petitioner, James Alfred Reed, Jr., of one count of the sale of one-half gram or more of cocaine within 1000 feet of a school and one count of the sale of less than one-half gram of cocaine within 1000 feet of a school. The trial court sentenced him as a Range II, multiple offender and ordered the Petitioner to serve an effective sentence of forty years. The Petitioner appealed, and this Court affirmed the judgments of the trial court. State v. James Alfred Reed, Jr., No. E2010-01138-CCA-R3-CD, 2011 WL 2766766, at *5 (Tenn. Crim. App., at Knoxville, July 18, 2011), perm. app. denied (Tenn. Dec. 13, 2011). The Petitioner subsequently filed a petition for post-conviction relief in which he alleged that his trial counsel was ineffective for failing to file a motion to compel the State to disclose its confidential informant at trial and that his Momon hearing was improperly conducted. The post-conviction court dismissed the petition after a hearing. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Monroe County Court of Criminal Appeals 09/04/14
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee
M2012-02596-SC-R3-BP

A federal bankruptcy court entered judgment denying a Nashville attorney’s application for approximately $372,000 in attorney’s fees and expenses. Nine months later, the attorney emailed the bankruptcy judge who denied his fee application, calling the judge a “bully and clown” and demanding that he provide a written apology for denying the fee application. The Board of Professional Responsibility instituted a disciplinary action against the attorney, and a hearing panel of the Board found that the attorney violated several Rules of Professional Conduct by sending the email and recommended that the attorney be suspended from the practice of law for thirty days. The chancery court modified the hearing panel’s judgment to include additional violations for misconduct associated with the attorney’s briefs filed in the district court but affirmed the remainder of the hearing panel’s judgment. The attorney timely appealed to this Court. We affirm the hearing panel’s conclusion that the attorney’s email violated the rule against ex parte communications and was also sanctionable as “conduct intended to disrupt a tribunal.” We conclude, however, that the hearing panel erred by finding the attorney in violation of the ethical rule that prohibits attorneys from making false statements about the qualifications or integrity of a judge. We also reverse the chancery court’s modification of the hearing panel’s judgment. We affirm the attorney’s thirty-day suspension from the practice of law.

Davidson County Supreme Court 09/03/14
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee - Concur
M2012-02596-SC-R3-BP

I concur in the lead opinion’s conclusions that Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(b) and 3.5(e) and that “an attorney may be disciplined pursuant to [RPC]8.2 only if the false statement is communicated to a third party.” I disagree, however, with the lead opinion’s conclusion that “the record lacks any indication that Mr. Hancock sent the email to anyone other than Judge Paine.” I would instead hold that the record contains substantial and material evidence establishing that Mr. Hancock sent an email to third parties. As a result, I would affirm the hearing panel’s judgment that Mr. Hancock violated RPC 8.2(a)(1). In all other respects, I concur in the lead opinion’s decision affirming Mr. Hancock’s thirty-day suspension from the practice of law.

Davidson County Supreme Court 09/03/14
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee - Concur
M2012-02596-SC-R3-BP

I concur in the lead opinion’s conclusions that (1) Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(b); (2) the disciplinary authority of this Court is not preempted by the Federal Rules of Bankruptcy Procedure; (3) discipline imposed pursuant to Tennessee Supreme Court Rule 8, RPC 8.2 requires that the false statement about a judicial or legal official be communicated to a third party; and (4) the chancery court erred by modifying the judgment of the hearing panel to include violations of Rules of Professional Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d). I disagree, however, with the conclusion that Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(e), and the imposition of a thirty-day suspension. Because I cannot find a basis to suspend Mr. Hancock for his offensive misbehavior, I would hold that a public reprimand is the appropriate sanction in this case.

Davidson County Supreme Court 09/03/14
State of Tennessee v. James Cody Burnett
E2013-01369-CCA-R3-CD

The Defendant, James Cody Burnett, pleaded guilty to one count of vehicular homicide by intoxication with an agreed sentence of eight years and the manner of the service of the sentence to be determined by the trial court. After a hearing, the trial court ordered the Defendant to serve his sentence in confinement. The Defendant filed a Rule 35 motion to reduce his sentence, which the trial court denied. The Defendant filed an appeal of both the trial court’s sentence of confinement and its denial of his Rule 35 motion to reduce his sentence. We consolidated those two appeals. After a thorough review of the record and applicable authorities, we affirm the trial court’s sentencing of the Defendant and its denial of his motion to reduce his sentence.

Knox County Court of Criminal Appeals 09/03/14
The Metropolitan Government of Nashville-Davidson County, TN v. The Board of Zoning Appeals of Nashville and Davidson County, TN, et al
M2013-01283-COA-R3-CV

Company which builds and manages billboards applied to the Metropolitan Department of Codes and Building Safety for permits to convert two static billboards to digital billboards. When the applications were denied by the Zoning Administrator, the company appealed to the Metropolitan Board of Zoning Appeals, which reversed the administrator’s decision and granted the permits. The Metropolitan Government of Nashville and Davidson County then filed a petition for a writ of certiorari seeking review of the Board’s decision; the trial court dismissed the petition on the ground that the Metropolitan Government did not have standing to bring the proceeding. We reverse the decision and remand for further proceedings

Davidson County Court of Appeals 09/03/14
State of Tennessee v. Steven Gregg Barker
E2013-02721-CCA-R3-CD

Appellant, Steven Gregg Barker, pleaded guilty to 23 counts of the initiation of the process to manufacture methamphetamine and received an eight year sentence, suspended to supervised probation. As a condition of the plea agreement, appellant reserved the right to certify three questions of law challenging the trial court's denial of a
motion to suppress. Upon our review of the record and applicable law, we hold that the Defendant is not entitled to relief. Accordingly, we affirm the judgment of the trial court.

Bradley County Court of Criminal Appeals 09/02/14
State of Tennesee v. Troy James Keith Reynolds
E2013-02777-CCA-R3-CD

The defendant, Troy James Keith Reynolds, appeals his Blount County Circuit Court jury convictions of burglary, theft, and possession of burglary tools, claiming that the evidence was insufficient to support his convictions. Because the judgment in count two erroneously reflects a conviction of Class C felony theft, we remand that judgment to the trial court for entry of a corrected judgment reflecting a conviction of Class D felony theft. In addition, we remand for correction of other clerical errors in the judgments. In all other respects, the judgments of the trial court are affirmed.

Blount County Court of Criminal Appeals 09/02/14
In Re Hayden L.E.B.
E2013-01880-COA-R3-PT

Rebecca H. and Christopher H. (“Petitioners”) filed a petition seeking to terminate the parental rights of Kayla H. (“Mother”) and Aaron B. (“Father”) to the minor child Hayden L.E.B. (“the Child”). After a trial the Juvenile Court for Knox County 1 (“the Juvenile Court”) terminated Father’s parental rights to the Child after finding clear and convincing evidence of grounds for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(iv) for abandonment by willful failure to pay support and abandonment by wanton disregard and clear and convincing evidence that it was in the Child’s best interest for Father’s parental rights to be terminated. Father appeals the termination of his parental rights to this Court. We find and hold that the evidence does not preponderate against the Trial Court’s findings made by clear and convincing evidence, and we affirm.

Knox County Court of Appeals 08/29/14
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