APPELLATE COURT OPINIONS

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William M. West Jr. v. Julie West

E2018-02277-COA-R3-CV

This appeal arises from detainer warrants sought by a decedent’s son seeking to remove a surviving spouse from a house. The trial court granted possession of the property to the son. We find it necessary to vacate the trial court’s ruling and to remand the matter for more in-depth findings of fact and conclusions of law.

Authoring Judge: Judge John W. McClarty
Originating Judge:Judge Kristi M. Davis
Knox County Court of Appeals 03/26/20
Eugene Spivey v. Shawn Phillips, Warden

W2019-00932-CCA-R3-HC

The pro se petitioner, Eugene Spivey, appeals from the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the ruling of the trial court.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge R. Lee Moore, Jr.
Lake County Court of Criminal Appeals 03/26/20
State of Tennessee v. LaDarius Berry

W2019-00310-CCA-R3-CD

A Shelby County grand jury indicted the defendant, LaDarius Berry, for attempted second degree murder (count 1), aggravated assault (count 2), employing a firearm during the commission of a dangerous felony (count 3), and reckless endangerment with a deadly weapon (count 4). After trial, a jury convicted the defendant as charged in counts 2, 3, and 4 and found him guilty of the
lesser-included offense of attempted voluntary manslaughter in count 1. The trial court merged the defendant’s convictions in counts 1 and 2 and imposed an effective twelve-year sentence. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and the sentencing imposed by the trial court. After our review, we affirm the judgments of the trial court, but remand the case for the specific purposes of entry of amended judgments as to counts 1 and 2 to reflect the non-merger of the offenses as well as the determination by the trial court as to whether the sentences in counts 1 and 2 should be served consecutively or concurrently.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge Lee V. Coffee
Shelby County Court of Criminal Appeals 03/26/20
State of Tennessee v. Antwon Young

W2019-00492-CCA-R3-CD

A Shelby County jury convicted the defendant, Antwon Young, of aggravated robbery and especially aggravated kidnapping, for which he received an effective sentence of thirty years. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and asserts the State made two improper statements during closing argument. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge Paula L. Skahan
Shelby County Court of Criminal Appeals 03/26/20
State of Tennessee v. Rashari Jones

W2018-02180-CCA-R3-CD

A Shelby County grand jury indicted the defendant, Rashari Jones, for attempted first degree murder, aggravated assault while acting in concert with two or more persons, and employing a firearm during the commission of a dangerous felony. Following a trial, a jury found the defendant guilty of attempted voluntary manslaughter, aggravated assault, and employing a firearm during the commission of a dangerous felony, and the trial court imposed an effective sentence of six years in confinement followed by four years of supervised probation. On appeal, the defendant contends the trial court erred in allowing the State to cross-examine the defendant regarding his whereabouts preceding the shooting, in finding the defendant was engaged in unlawful activity and omitting the “no duty to retreat” language from the self-defense instruction, and in failing to merge his convictions for attempted voluntary manslaughter and aggravated assault. We conclude that although the self-defense instruction was erroneous, the error was harmless. Therefore, we affirm the judgments of the trial court.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge Chris Craft
Shelby County Court of Criminal Appeals 03/26/20
Eric Wooten v. State of Tennessee

W2019-01228-CCA-R3-PC

The petitioner, Eric Wooten, appeals the dismissal of his petition for post-conviction relief arguing the post-conviction court erred in dismissing his petition as untimely. Upon review, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge W. Mark Ward
Shelby County Court of Criminal Appeals 03/26/20
Tennessee Department of Children's Services v. Kaviandra James

M2019-00070-COA-R3-CV

A preferred-service employee with the Department of Children’s Services was terminated for accessing a case file involving her sister and sending an email to the case manager assigned to her sister’s case and the case manager’s supervisor, with a copy to her sister. The employee ultimately appealed her termination to the Board of Appeals of the Department of Human Resources, which modified her termination to a suspension without pay and reinstated her with back pay. The Department appealed to chancery court, which affirmed the Board’s determination. Upon a thorough review of the record, we affirm the judgment of the trial court and remand the case to the Board of Appeals for further proceedings.  

Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Chancellor Anne C. Martin
Davidson County Court of Appeals 03/25/20
Ronald C. Young v. E.T. Stamey et al.

E2019-00907-COA-R3-CV

This appeal concerns whether a city councilman is disqualified from office because he also is employed by his city’s municipal school system. Ronald C. Young (“Young”) ran against E.T. Stamey (“Stamey”) for a seat on the Clinton City Council. Stamey, the incumbent, won. Afterward, Young filed suit in the Chancery Court for Anderson County (“the Trial Court”) against Stamey as well as the Anderson County Election Commission and its members (“the Commission”). Young alleged that, pursuant to Tenn. Code Ann. § 7-51-1501 and the Clinton City Charter, Stamey is disqualified from being a city councilman because he works for Clinton City Schools (“CCS”), albeit in a noninstructional capacity. The Commission filed a motion for judgment on the pleadings, and Stamey filed a motion for summary judgment. The Trial Court granted both motions. Young appeals. We hold, first, that Stamey is not a city employee. We hold further that even if Stamey is a city employee, as a noninstructional public school employee he is allowed to run for city council pursuant to Tenn. Code Ann. § 49-5-301. Finally, we hold that Young failed to state a claim against the Commission, which acted solely in its ministerial capacity in certifying the election results. We affirm.

Authoring Judge: Judge D. Michael Swiney
Originating Judge:Judge M. Nichole Cantrell
Anderson County Court of Appeals 03/25/20
State of Tennessee v. Waynard Quartez Winbush

E2018-02136-CCA-R3-CD

Defendant, Waynard Quartez Winbush, was convicted of various drug offenses and sentenced to an effective sentence of twenty-three years. On appeal, Defendant argues that: (1) he received ineffective assistance of counsel; (2) the trial court erred by failing to sever prejudicial offenses; (3) the trial court erred by failing to grant a new trial based on prosecutorial misconduct; (4) the trial court erred by failing to include lesser-included offenses in the jury instructions; (5) the trial court erred by failing to grant a new trial based on newly discovered evidence; (6) the trial court erred by failing to dismiss the case based on a violation of Defendant’s right to a speedy trial; (7) the trial court erred by failing to grant a new trial after failing to rule on Defendant’s pretrial motions; (8) the trial court erred by allowing the State to improperly introduce evidence; (9) the trial court erred by failing to grant a new trial based on witness perjury; (10) the evidence was insufficient to sustain the convictions; (11) the trial court erred by instructing the jury on the lesser-included offense of simple possession for conspiracy; and (12) the trial court erred by failing to grant a new trial based on cumulative errors. After conducting a full review of the record, we determine that Defendant is entitled to relief from his convictions for conspiracy in Counts 3 and 4 because the instructions given to the jury did not match the charges in the presentment, and we vacate Defendant’s convictions as to those counts. As to the remaining arguments, we find Defendant is not entitled to relief. Consequently, we reverse the judgments of the trial court in part and affirm the judgments in part. 

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge G. Scott Green
Knox County Court of Criminal Appeals 03/24/20
Harold D. Doss, Jr., And Johnathan Lamar Hathaway v. State of Tennessee

M2019-00238-CCA-R3-PC

Harold D. Doss, Jr., and Johnathan Lamar Hathaway filed separate petitions for post-conviction relief. Because Petitioners were tried together, the post-conviction court conducted a single post-conviction hearing and denied relief as to both Petitioners. Discerning no error, we affirm.

Authoring Judge: Judge Robert L. Holloway, Jr.
Originating Judge:Judge Mark J. Fishburn
Davidson County Court of Criminal Appeals 03/24/20
Sherilyn Mary Dawson v. Dana Lee Dawson

E2018-00990-COA-R3-CV

In this divorce matter, the parties engaged in protracted litigation concerning the initial amount of the father’s child support obligation before the trial court set the amount of child support to be paid. Meanwhile, the father sought a modification of his child support obligation. The trial court determined that its order entered on January 27, 2014, was final as to the amount of the father’s initial child support obligation because the order left no remaining issues to be determined. The father has appealed. Discerning no reversible error, we affirm the trial court’s judgment.

Authoring Judge: Judge Thomas R. Frierson, II
Originating Judge:Judge F. Weaver
Knox County Court of Appeals 03/24/20
Ricky Lee Johnson v. Knoxville HMA Cardiology PPM, LLC

E2019-00818-COA-R3-CV

In this action involving injuries allegedly caused by the defendant medical providers’ failure to provide a safe examination table, the trial court determined that the plaintiff’s negligence claim was actually a health care liability claim and granted the defendants’ motion to dismiss the complaint with prejudice for failure to provide written pre-suit notice to the defendants within the one-year statute of limitations pursuant to Tennessee Code Annotated § 29-26-121(a) (Supp. 2019) of the Tennessee Health Care Liability Act (“THCLA”). The plaintiff has appealed, conceding that he failed to provide written presuit notice but asserting that his claim should not have been dismissed because it was not a health care liability claim. Having determined that the trial court properly found that the plaintiff’s claim was a health care liability action, we affirm the dismissal of this matter. However, having also determined that the proper sanction for the plaintiff’s failure to provide pre-suit notice under the THCLA was dismissal without prejudice, we modify the trial court’s dismissal of the claim to be without prejudice.

Authoring Judge: Judge Thomas R. Frierson, II
Originating Judge:Judge Kristi M. Davis
Knox County Court of Appeals 03/24/20
Mateem Hudson v. State of Tennessee

W2018-01939-CCA-R3-PC

The Petitioner, Mateem Hudson, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction of second degree murder and resulting sentence of twenty-three years in confinement. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the postconviction court.

Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge Chris Craft
Shelby County Court of Criminal Appeals 03/23/20
Carlos Smith v. State of Tennessee

W2018-00497-CCA-R3-PC

The Petitioner, Carlos Smith, filed a petition for post-conviction relief in the Shelby County Criminal Court, seeking relief from his convictions of two counts of attempted second degree murder, one count of aggravated robbery, one count of especially aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, two counts of aggravated assault, and one count of being a felon in possession of a handgun and resulting effective sentence of one hundred twenty years. After an evidentiary hearing, the post-conviction court denied relief, and this court affirmed the denial except for one issue: whether trial counsel were ineffective for failing to advise the Petitioner that he was a career offender, which resulted in his rejecting a plea offer. Regarding that issue, this court remanded the case to the post-conviction court because that court failed to making any findings. Upon remand, the post-conviction court concluded that the Petitioner was not entitled to relief. On appeal, the Petitioner maintains that he received the ineffective assistance of counsel because his trial attorneys failed to inform him of his career offender status. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge Paula L. Skahan
Shelby County Court of Criminal Appeals 03/23/20
Reginald D. Tumlin v. State of Tennessee

E2019-00622-CCA-R3-PC

A Hamilton County jury convicted the Petitioner, Reginald D. Tumlin, of two counts of child abuse, one count of criminally negligent homicide, and one count of aggravated child neglect. On appeal, this court affirmed the convictions. State v. Reginald D. Tumlin, No. E2013-01452-CCA-R3-CD, 2014 WL 7073752, at *1 (Tenn. Crim. App., at Knoxville, Dec. 15, 2014), perm. app. denied (Tenn. May 14, 2015). The Petitioner timely filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. The Petitioner maintains on appeal that his attorneys’ representation was deficient and he was prejudiced by the deficiencies. After review, we affirm the post-conviction court.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Thomas C. Greenholtz
Hamilton County Court of Criminal Appeals 03/23/20
Willie James Bradley v. State of Tennessee

E2019-00476-CCA-R3-PC

The Petitioner, Willie James Bradley, appeals from the Hamilton County Criminal Court’s summary denial of his petition for
post-conviction relief and his “motion to change order.” The Petitioner contends that his due process rights were violated because the trial court did not inform him that he was subject to lifetime community supervision as a result of his guilty plea. The Petitioner also argues that his judgments were improperly changed by extra-judicial agencies. Following our review, we affirm.

Authoring Judge: Judge D. Kelly Thomas
Originating Judge:Judge Thomas C. Greenholtz
Hamilton County Court of Criminal Appeals 03/23/20
Anthony James Zonneville v. State of Tennessee

M2018-01754-CCA-R3-PC

Petitioner, Anthony James Zonneville, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner was convicted of possession with intent to sell or deliver .5 grams or more of cocaine in a drug free zone and simple possession of alprazolam. Petitioner contends on appeal that the trial court erred in denying the petition for post-conviction relief because he was denied effective assistance of counsel. Following a review of the briefs and the record, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Seth W. Norman
Davidson County Court of Criminal Appeals 03/20/20
George Oviasojie v. State of Tennessee

M2019-00761-CCA-R3-PC

The petitioner, George Oviasojie, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel prior to and during his guilty plea hearing. Upon our review of the record, arguments of the parties, and pertinent authorities, we affirm the denial of the petition.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge Angelita Blackshear Dalton
Davidson County Court of Criminal Appeals 03/20/20
State of Tennessee v. Carl S. Dixon

E2019-00228-CCA-R3-CD

Defendant, Carl S. Dixon, was indicted by the Washington County Grand Jury for aggravated assault. Following a jury trial, Defendant was convicted of reckless aggravated assault. Following a sentencing hearing, the trial court sentenced Defendant to serve two years, to be suspended on probation, and ordered Defendant to pay the victim $600 in restitution at the rate of $25 per month. Defendant’s sole issue on appeal is whether the trial court’s order of restitution was proper when Defendant’s only source of income was Social Security Supplemental Security Income. Having reviewed the record and the applicable authority, we affirm the judgment of the trial court.

Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Stacy L. Street
Washington County Court of Criminal Appeals 03/20/20
In Re Connor B.

M2019-00181-COA-R3-PT

In this termination of parental rights action, the mother has appealed the trial court’s grant of a default judgment to the petitioners following the mother’s filing of an answer that did not contain her signature in accordance with Tennessee Code Annotated § 36-1-117(o). Although we determine that the trial court properly granted a default judgment to the petitioners based upon the mother’s failure to file a proper answer within the time allowed, we vacate the trial court’s termination of the mother’s parental rights, determining that the appellate record is insufficient to afford appropriate review of the statutory grounds for termination and best interest analysis.

Authoring Judge: Judge Thomas R. Frierson, II
Originating Judge:Chancellor J. B. Cox
Lincoln County Court of Appeals 03/20/20
In Re H.S. - Concurring In Part and Dissenting In Part

M2019-00808-COA-R3-PT

I fully concur in the majority opinion’s determination by clear and convincing evidence that the grounds of abandonment by failure to provide a suitable home and persistent conditions exist. I also agree that there is clear and convincing evidence supporting a finding that termination of Mother’s parental rights is in the best interest of the child. Therefore, I agree with the ultimate result reached by the majority. However, I do disagree with the treatment of the ground found in Tenn. Code Ann. § 36-1-113(g)(14). The majority opinion follows In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280 (Tenn. Ct. App. June 20, 2018), which engages in a complicated use of statutory construction and grammar rules to essentially conclude that “and” actually means “or” in the language “ability and willingness.” I prefer the interpretation found in In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044 (Tenn. Ct. App. May 31, 2018). I believe the General Assembly purposefully chose the word “and” in order to differentiate this ground from other grounds. Interpreting “and” as “or,” in my opinion, makes Tenn. Code Ann. § 36-1-113(g)(14) a weaker version of other grounds. I do not believe such an interpretation is consistent with the legislative intent. Therefore, I dissent from the majority opinion’s interpretation of Tenn. Code Ann. § 36-1-113(g)(14).

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge Sharon Guffee
Williamson County Court of Appeals 03/20/20
Francine S. Labbe v. James Eric Karn II

E2019-01408-COA-R3-CV

The appeal arises from a divorce. Acting pro se, the former husband seeks review, of what we cannot be certain. Because his brief falls well short of the requirements of both the Tennessee Rules of Appellate Procedure and the rules of this Court, we dismiss the appeal.

Authoring Judge: Judge W. Neal McBrayer
Originating Judge:Judge Kyle E. Hedrick
Hamilton County Court of Appeals 03/20/20
In Re H. S.

M2019-00808-COA-R3-PT

The Department of Children’s Services filed a petition to terminate the parental rights of E.R. (mother) and T.S. (father) with respect to H.S. (the child). The trial court found clear and convincing evidence to terminate mother and father’s parental rights on multiple grounds. By the same quantum of proof, the court determined that termination of mother and father’s parental rights is in the best interest of the child. Only mother appeals. We affirm.

Authoring Judge: Judge Charles D. Susano.Jr.
Originating Judge:Judge Sharon Guffee
Williamson County Court of Appeals 03/20/20
State of Tennessee v. Antoine Hinton

W2018-01931-CCA-R3-CD

A Shelby County Criminal Court Jury convicted the Appellant, Antoine Hinton, of first degree felony murder; especially aggravated kidnapping, a Class A felony; aggravated kidnapping, a Class B felony; employing a firearm during the commission of a dangerous felony, a Class C felony; and reckless aggravated assault, a Class D felony, and he received an effective sentence of life plus twenty-eight years in confinement. On appeal, the Appellant contends that the trial court committed reversible error by failing to instruct the jury as provided by State v. White, 362 S.W.3d 559 (Tenn. 2012), and that the evidence is insufficient to support his murder conviction because the underlying felony was complete at the time of the victim’s death. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the Appellant’s convictions and his total effective sentence of life plus twenty-eight years but remand the case to the trial court for amendment of the judgments to reflect that the Appellant’s conviction of aggravated kidnapping in count three is merged into his conviction of especially aggravated kidnapping in count two and for correction of the judgments regarding concurrent and consecutive sentencing.

Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge John Wheeler Campbell
Shelby County Court of Criminal Appeals 03/19/20
State of Tennessee v. Quintavious Montez Patton and Donte R. Swanier

M2018-01462-CCA-R3-CD

A Davidson County jury convicted Quintavious Montez Patton of first degree felony murder, voluntary manslaughter, attempted especially aggravated robbery, and attempted aggravated robbery. The jury convicted Donte Ricardo Swanier of first degree felony murder, attempted especially aggravated robbery, and attempted aggravated robbery. The trial court sentenced both Defendants to effective sentences of life in prison. On appeal, Defendant Patton: (1) challenges the trial court’s admission of video evidence; (2) claims his right to a speedy trial was violated; and (3) seeks relief based upon the cumulative effect of the trial court’s errors. Defendant Swanier appeals the trial court’s admission of: (1) rap music; (2) Facebook posts; and (3) prior bad acts. After review, we affirm the trial court’s judgments.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Steve R. Dozier
Davidson County Court of Criminal Appeals 03/19/20