APPELLATE COURT OPINIONS

Richard Alan Shannon v. Genera Garandang Shannon

M2020-00055-COA-R3-CV

The trial court granted a wife’s motion to alter or amend a final decree of divorce. The ruling modified the parties’ marital dissolution agreement. On appeal, the husband contends that there was no basis for setting aside an agreement that the parties entered into voluntarily and knowingly. Discerning no abuse of discretion, we affirm. 

Authoring Judge: Judge W. Neal McBrayer
Originating Judge:Judge Ross H. Hicks
Montgomery County Court of Appeals 04/23/21
Lindsey Beth Honea v. John William Honea

M2020-00881-COA-R3-CV

A mother and father of three children were divorced in 2018, and both parties filed petitions to modify the permanent parenting plan later that year. Both parties also asked the trial court to hold the other party in contempt for violating the parenting plan and engaging in other objectionable conduct. The trial court found the father guilty of two counts of contempt and the mother guilty of three counts of contempt, and it ordered them to spend two days in jail for each count. The court granted the husband’s petition to modify the parenting plan and changed the designation of the primary residential parent from the mother to the father. The mother appeals, and we affirm the trial court’s judgment in all respects.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Chancellor Darrell Scarlett
Rutherford County Court of Appeals 04/22/21
In Re Jason S.

E2020-01479-COA-R3-PT

Appellant/Mother appeals the trial court’s termination of her parental rights to the minor child on the grounds of: (1) abandonment by failure to visit, Tenn. Code Ann. §§ 36-1- 113(g)(1), 36-1-102(1)(A)(i); (2) abandonment by failure to provide a suitable home, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(A)(ii); (3) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (4) persistence of the conditions that led to the child’s removal, Tenn. Code Ann.
§ 36-1-113(g)(3). Appellant also appeals the trial court’s finding that termination of her parental rights is in the child’s best interest. Discerning no error, we affirm.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Janice Hope Snider
Hamblen County Court of Appeals 04/22/21
State of Tennessee v. Marvin Maurice DeBerry

W2019-01666-CCA-R3-CD

A jury convicted the Defendant, Marvin Maurice DeBerry, of driving after having been declared a motor vehicle habitual offender (“MVHO”) and of three misdemeanor offenses not presented for appellate review. After his conviction but prior to his sentencing, an amendment to the statute that was the basis of his MVHO conviction went into effect, so that the Defendant’s conduct was no longer criminalized and, concomitantly, triggered no penalty. The trial court, after initially sentencing the Defendant to serve five years, modified the Defendant’s judgment to reflect that he was to be subjected to no penalty. On appeal, we are called to determine whether the Defendant may benefit from the savings statute in Tennessee Code Annotated section 39-11-112. We hold that the savings statute applies because Legislature’s act of removing punishment for the offense constitutes a lesser penalty. Accordingly, we affirm the trial court’s judgment reducing the Defendant’s sentence.

Authoring Judge: Presiding Judge John Everett Williams
Originating Judge:Judge Roy B. Morgan, Jr.
Madison County Court of Criminal Appeals 04/21/21
Amber Lyn Rogers v. Joshua Michael Rogers, Sr.

E2020-00913-COA-R3-CV

A wife obtained an ex parte order of protection from her estranged husband. After a hearing, the trial court found that the wife had proven the allegations of domestic abuse by a preponderance of the evidence. So the court extended the order of protection for one year. Because the evidence does not preponderate against the trial court’s abuse finding, we affirm.

Authoring Judge: Judge W. Neal McBrayer
Originating Judge:Judge Tammy M. Harrington
Blount County Court of Appeals 04/21/21
Courtney Allison West v. Phillip Ryan Chase Byrd

E2021-00080-COA-R3-CV

The Notice of Appeal filed by the appellant, Courtney Allison West, stated that appellant was appealing the judgment entered on January 7, 2021. As the parenting plan entered on January 7, 2021 does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Authoring Judge: Per Curiam
Originating Judge:Judge James Cotton
Scott County Court of Appeals 04/21/21
State of Tennessee v. Jaleen Genard Allen

E2020-00632-CCA-R3-CD

The Defendant, Jaleen Genard Allen, was convicted by a Knox County Criminal Court jury of first degree premeditated murder, first degree felony murder during the perpetration of a kidnapping, especially aggravated kidnapping, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202 (2018) (subsequently amended) (first degree murder), 39-13-305 (2018) (especially aggravated kidnapping), 39-17-1324 (2018) (subsequently amended) (firearm violation). The trial court merged the first degree murder convictions and imposed a life sentence. The court sentenced the Defendant to twenty-five years for the especially aggravated kidnapping conviction and to six years for the firearm violation. The court ordered consecutive service, for an effective sentence of life imprisonment plus thirty-one years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Authoring Judge: Judge Robert H. Montgomery, Jr.
Originating Judge:Judge G. Scott Green
Knox County Court of Criminal Appeals 04/21/21
State of Tennesse v. Jonathan Michael Bass

M2020-00490-CCA-R3-CD

The Defendant, Jonathan Michael Bass, pleaded guilty to one count of theft of property valued at $2,500 or more, but less than $10,000, two counts of theft of property valued over $1,000 but less than $2,500, one count of theft of property valued at $1,000 or less, three counts of “doctor shopping,” and three counts of prescription drug fraud. The trial court imposed partial consecutive sentencing for an effective sentence of eight years to be served on supervised probation. On appeal, the Defendant asserts that the trial court erred by ordering partial consecutive sentences. After review, we affirm the trial court’s judgments.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Deanna B. Johnson
Williamson County Court of Criminal Appeals 04/21/21
Stephen Gerard Smith v. State of Tennessee

M2020-00559-CCA-R3-PC

The Petitioner, Stephen Gerard Smith, was convicted by a jury of aggravated assault, attempted aggravated assault, and three counts of domestic assault for offenses committed against his wife, and he received an effective twenty-five-year sentence. He sought and was denied post-conviction relief based on numerous allegations of ineffective assistance of counsel. On appeal, he alleges that he received ineffective assistance when trial counsel: (1) gave deficient advice regarding a plea offer; (2) failed to challenge a prospective juror; (3) argued in closing argument that the Petitioner was guilty of the misdemeanor offenses; (4) failed to object to testimony referring to the Petitioner’s prior incarceration; (5) failed to object to the prosecutor’s comment on the victim’s credibility; (6) failed to call witnesses; and (7) failed to interview witnesses. Because we conclude that the Petitioner has not established either deficiency or prejudice for each claim, we affirm the denial of post-conviction relief.

Authoring Judge: Presiding Judge John Everett Williams
Originating Judge:Judge J. Curtis Smith
Franklin County Court of Criminal Appeals 04/21/21
Debra Sue Byington v. Jamie Reaves, D.O., Et Al.

E2020-01211-COA-R3-CV

This is a health care liability case. The trial court granted Appellees’ motion to dismiss because Appellant failed to provide Appellees with the proper pre-suit notice under Tennessee Code Annotated section 29-26-121(a)(1). Discerning no error, we affirm.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge John S. McLellan, III
Sullivan County Court of Appeals 04/20/21
Alexander R. Carino v. State of Tennessee

E2020-01435-CCA-R3-PC

Alexander R. Carino, Petitioner, appeals the summary dismissal of his 2020 Petition for Post-Conviction Relief which challenged his 2010 convictions for two counts of second degree murder. We affirm.

Authoring Judge: Judge Robert L. Holloway, Jr.
Originating Judge:Judge Wesley Thomas Bray
Cumberland County Court of Criminal Appeals 04/20/21
In Re Brilee E. et al.

M2020-00527-COA-R3-JV

Two children were removed from their grandmother’s custody and subsequently adjudicated dependent and neglected. The grandmother appeals the trial court’s denial of her petition for custody of the children, asserting that granting her custody is in the children’s best interest. We affirm the trial court’s judgment as to one child and dismiss the appeal as moot as to the other. 

Authoring Judge: Judge Kristi M. Davis
Originating Judge:Judge Kathryn Wall Olita
Montgomery County Court of Appeals 04/20/21
Randall G. Himes v. Elizabeth Bates Himes

M2019-01344-COA-R3-CV

In this post-divorce dispute, ex-spouses filed competing petitions to modify alimony.  The wife also sought to hold her former husband in civil contempt for failure to maintain the term life insurance policy specified in the parties’ marital dissolution agreement.  The trial court declined to hold the husband in contempt.  Both parties obtained partial relief on their modification petitions.  The court granted the wife a judgment for a retroactive increase in alimony.  The court also reduced the husband’s alimony obligation prospectively based on his inability to pay the current amount during his retirement.  We conclude that the evidence preponderates against a finding that the husband had the ability to pay additional alimony in the first two months of 2019.  We further conclude that the wife is entitled to an award of post-judgment interest.  So we modify the court’s retroactive judgment accordingly.  Otherwise, we affirm.

Authoring Judge: Judge W. Neal McBrayer
Originating Judge:Judge A. Ensley Hagan, Jr.
Wilson County Court of Appeals 04/20/21
State of Tennessee v. Braxton Levar Taylor

W2020-00437-CCA-R3-CD

A Madison County jury convicted the defendant, Braxton Levar Taylor, of second-degree murder and unlawful possession of a firearm for which he received an effective sentence of twenty-five years’ incarceration. On appeal, the defendant argues the trial court erred in denying two, pre-trial motions to suppress the victim’s dying declaration, wherein the victim named the defendant as his shooter, and a photographic lineup which contained his picture and resulted in two witness identifications. The defendant also argues the trial court erred by failing to provide a jury instruction concerning the victim’s dying declaration and in sentencing. Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge Donald H. Allen
Madison County Court of Criminal Appeals 04/20/21
State of Tennessee v. Stacy Ann Givens

W2019-01799-CCA-R3-CD

Defendant-Appellant, Stacy Ann Givens, was indicted by a Henderson County grand jury of filing a false police report in violation of Tennessee Code Annotated section 39-16-502, a Class D felony, and misuse of 911 in violation of Tennessee Code Annotated section 7-86-316, a Class C felony. Following a jury trial, the Defendant was convicted of both offenses. The trial court sentenced the Defendant as a Range II, multiple offender to five years’ imprisonment for the filing a false police report conviction and thirty days’ imprisonment for the misuse of 911 conviction, to be served concurrently. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the evidence is sufficient to support the filing a false police report conviction, and (2) whether the trial court abused its discretion by denying the Defendant an alternative sentence. Upon review, we affirm the judgments of the trial court.

Authoring Judge: Judge Camille R. McMullen
Originating Judge:Judge Roy B. Morgan, Jr.
Henderson County Court of Criminal Appeals 04/20/21
State of Tennessee v. Elgene K. Porter

M2020-00522-CCA-R3-CD

The Petitioner, Elgene K. Porter, acting pro se, appeals the summary dismissal of his “Motion to Correct and/or Amend Sentence” pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. Upon our review, we affirm.

Authoring Judge: Judge Camille R. McMullen
Originating Judge:Judge Barry R. Tidwell
Rutherford County Court of Criminal Appeals 04/19/21
State, ex rel., James Frederick Roberts v. Elizabeth Dale Crafton

W2019-01010-COA-R3-JV

This appeal concerns a post-divorce child support matter. Elizabeth Dale Crafton (“Mother”) sued James Frederick Roberts (“Father”) for divorce. In 2007, the Circuit Court for Shelby County (“the Circuit Court”) entered a final decree of divorce in the case. In 2008, the Circuit Court entered a permanent parenting plan concerning the parties’ children. The Juvenile Court for Shelby County (“the Juvenile Court”) later accepted jurisdiction for child support matters. Father went on to file a series of motions seeking to be relieved from paying for private school tuition. In 2019, the Juvenile Court entered an order denying Father relief and resolving all outstanding matters. Father appeals, arguing among other things that the original child support order is void as against public policy for failure to adhere to the Child Support Guidelines, and that the succeeding orders are void, as well. As the original child support order did not entirely relieve the parents of their duty to support and otherwise was jurisdictionally sound, we hold that it is not void. We affirm.

Authoring Judge: Chief Judge D. Michael Swiney
Originating Judge:Judge Dan H. Michael
Shelby County Court of Appeals 04/19/21
State of Tennessee v. Timothy Leon Ledford

M2019-02045-CCA-R3-CD

The Defendant, Timothy Leon Ledford, pleaded guilty to eleven counts of aggravated assault, and he was sentenced to an effective sentence of twenty-four years in confinement. On appeal, the Defendant challenges his sentence by arguing that the trial court abused its discretion by imposing an excessive sentence, denying him alternative sentencing, and ordering consecutive sentencing. We affirm the trial court’s judgments.

Authoring Judge: Presiding Judge John Everett Williams
Originating Judge:Judge M. Wyatt Burk
Bedford County Court of Criminal Appeals 04/19/21
State of Tennessee v. Jimmie Dean Roy

E2019-02263-CCA-R3-CD

Pursuant to a plea agreement, the Defendant, Jimmie Dean Roy, pled guilty to five counts of identity theft and one count of identity theft trafficking, and he conceded that he violated the terms of his probation with respect to his prior convictions for three counts of burglary of an automobile and one count of theft of property valued over $1,000. The Defendant received an effective eight-year sentence to be served in confinement, and the trial court stayed the execution of the sentence and granted the Defendant a furlough to the drug court program. The Defendant subsequently fled the state. Following his arrest, the drug court removed him from the program, and the trial court ordered his sentences into execution. On appeal, the Defendant challenges his removal from the drug court program and argues that he was not afforded due process protections during the removal hearing. We affirm the judgment of the trial court.

Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Don W. Poole
Hamilton County Court of Criminal Appeals 04/16/21
State of Tennessee v. Michael Rimmer - Concurring

W2017-00504-SC-DDT-DD

 I concur in the Court’s opinion except for the analysis of the proportionality review. In 1997, this Court narrowed the scope of the proportionality review required by Tennessee Code Annotated section 39 13 206(c)(1)(D) (2018 & Supp. 2020) by limiting consideration to only those cases in which the State sought the death penalty. State v. Bland, 958 S.W.2d 651, 666 (Tenn. 1997). A majority of this Court reaffirmed this truncated approach in State v. Pruitt, 415 S.W.3d 180, 217 (Tenn. 2013). 

Authoring Judge: Justice Sharon G. Lee
Originating Judge:Judge Chris Craft
Shelby County Supreme Court 04/16/21
State of Tennessee v. Michael Rimmer

W2017-00504-SC-DDT-DD

This is a direct appeal in a capital case. The defendant had one prior trial. In the second trial, a Shelby County jury found the defendant guilty of first degree premeditated murder, murder in the perpetration of robbery, and aggravated robbery. He was sentenced to death plus a consecutive eighteen years of incarceration. The Court of Criminal Appeals affirmed the convictions and the sentence. We now consider the appeal on automatic review pursuant to Tennessee Code Annotated section 39-13-206(a)(1). We hold the following: (1) based on sequential jury instructions given in the first trial, the first jury did not have a full opportunity to consider the felony murder count, so double jeopardy principles did not bar retrial on the felony murder count; (2) alleged prosecutorial misconduct in the first trial did not trigger double jeopardy protections and did not bar retrial of the defendant; (3) because the State did not have a duty to preserve the defendant’s vehicle, the trial court did not err in denying the defendant’s motion to suppress DNA evidence from the vehicle; (4) the trial court did not err under Tennessee Rule of Evidence 404(b) in admitting evidence of the defendant’s prior convictions for rape and assault of the victim; and (5) the trial court did not err under Rule 404(b) in admitting evidence of the defendant’s escape attempts and corroborating evidence of homemade shanks in his cell. We hold further that imposition of the death penalty is not arbitrary, given the circumstances of the crime; that the evidence supports the jury’s finding that the State proved one aggravating circumstance beyond a reasonable doubt; that the evidence supports the jury’s conclusion that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt; and that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases. As to the remaining issues raised by the defendant, we agree with the conclusions of the Court of Criminal Appeals and attach as an appendix to this opinion the relevant portions of the intermediate court’s decision. We affirm the convictions and the sentence.  Note:  See "Rehear Order May 21, 2021".

Authoring Judge: Justice Holly Kirby
Originating Judge:Judge Chris Craft
Shelby County Supreme Court 04/16/21
William Maurice West, Jr. v. Julie A. West

E2020-00780-COA-R3-CV

A decedent’s son brought an action for unlawful detainer against the decedent’s widow in general sessions court in an effort to take possession of property left to the son in the decedent’s will. After the general sessions court dismissed the son’s case, he requested a de novo appeal in circuit court. The son prevailed in the circuit court proceeding, and the widow appealed. Because the widow did not occupy the property pursuant to a landlord-tenant contract, the son does not have a cause of action for unlawful detainer. We, therefore, conclude that the circuit court erred in awarding possession of the property to the son. The judgment of the circuit court is reversed and the case is remanded for entry of an order of dismissal.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge Kristi M. Davis
Knox County Court of Appeals 04/15/21
David Nichols v. Metropolitan Nashville Airport Authority

M2020-00593-COA-R3-CV

This case concerns the civil rights exception to government liability for an employee’s negligent acts under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 20-29-205(2). The plaintiff filed a complaint against the Metropolitan Nashville Airport Authority, asserting three negligence claims. He alleged that airport officers injured him by using an “arm bar restraint” during an arrest. The trial court dismissed the complaint upon finding the allegations amounted to a claim that the officers violated his civil rights by using excessive force. On appeal, the plaintiff argues that the civil rights exception does not apply because he alleged that the officers negligently assessed the amount of force necessary rather than alleging that they intentionally used excessive force. We agree with the trial court’s determination that the plaintiff’s allegations sound squarely in civil rights and are barred by § 20-29-205(2). Accordingly, we affirm the judgment of the trial court.

Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Originating Judge:Judge Joseph P. Binkley, Jr.
Davidson County Court of Appeals 04/15/21
State of Tennessee v. Jamarcus Dequan Murdock

W2020-00244-CCA-R3-CD

Aggrieved of his Hardeman County Circuit Court jury convictions of aggravated robbery, the defendant challenges the sufficiency of the convicting evidence for two of his convictions and the total effective sentence. We affirm the defendant’s convictions but, because the trial court failed to make the requisite findings to support consecutive sentences based upon the dangerous offender category, we vacate the imposition of consecutive sentences and remand the case for the limited purpose of making the appropriate findings on this issue. Upon remand, the trial court should also correct the minor clerical error in the judgment form for Count 3.

Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge J. Weber McCraw
Hardeman County Court of Criminal Appeals 04/15/21
State of Tennessee v. Russell Wheeler, Jr.

W2020-00030-CCA-R3-CD

A Madison County jury convicted the defendant, Russell Wheeler, Jr., of attempted aggravated statutory rape, attempted solicitation of a minor, and disorderly conduct. Following a sentencing hearing, the trial court imposed an effective sentence of six years, eleven months, and twenty-nine days in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his attempted aggravated statutory rape and attempted solicitation of a minor convictions. The defendant also contends the trial court erred in failing to merge his convictions and in ordering a sentence of confinement without requiring a psychosexual evaluation or properly considering the appropriate factors. Following our review, we affirm the judgments of the trial court with respect to the defendant’s convictions for attempted aggravated statutory rape and disorderly conduct. However, we vacate the defendant’s conviction for attempted solicitation of a minor because the defendant was convicted of a crime which does not exist. Consequently, the judgments of the trial court are affirmed in part, vacated in part, and remanded.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge Kyle C. Atkins
Madison County Court of Criminal Appeals 04/15/21