COURT OF CRIMINAL APPEALS OPINIONS

State of Tennessee v. Jerry Lynn Huskey
E2022-00713-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Rex H. Ogle

Defendant, Jerry Lynn Huskey, appeals the trial court’s order revoking his sentence of
probation for aggravated domestic assault, theft under $1,000, evading arrest, and resisting
arrest, and ordering him to serve his original six-year sentence in confinement. Following
our review of the entire record and the briefs of the parties, we affirm the judgment of the
trial court.

State of Tennessee v. Leslie Lamont Coleman
M2022-00278-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Forest A. Durard, Jr.

The defendant, Leslie Lamont Coleman, was convicted of aggravated robbery, a Class B felony, and sentenced to twenty years in the Department of Correction, to be served consecutively to his sentence in a prior felony murder case. On appeal, the defendant argues: (1) the evidence is insufficient to sustain his conviction because the only proof connecting him to the crime was the uncorroborated testimony of his alleged accomplice; (2) the trial court committed plain error by ruling the State could question the defendant about his prior felony murder conviction under Tennessee Rules of Evidence 608 and 609 if he chose to testify; and (3) the trial court erred in sentencing by imposing the maximum Range II sentence of twenty years. After review, we affirm the judgment of the trial court.

Curtis Morris v. State of Tennessee
W2022-00208-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Petitioner, Curtis Morris, appeals the denial of post-conviction relief from his Shelby County convictions for first degree murder during the perpetration of aggravated child abuse, first degree murder during the perpetration of aggravated child neglect, aggravated child abuse of a child eight years of age or less, and aggravated child neglect of a child eight years of age or less, for which he received a sentence of life imprisonment. Petitioner contends that he was denied the effective assistance of counsel based upon counsel’s: (1) failure to call an expert witness to rebut the State’s experts and bolster Petitioner’s testimony that the victim’s death was accidental; (2) making “material misstatements” regarding the evidence in counsel’s opening statement; (3) failure to adequately prepare to cross-examine one of the State’s experts and failure to request a McDaniel hearing to challenge the expert’s testimony; (4) failure to file any pretrial motions; (5) failure to object, during the prosecutor’s cross-examination of Petitioner, to the prosecutor’s repeated use of the word “stomping” to characterize Petitioner’s direct examination testimony; (6) failure to request proper jury instructions regarding the mens rea required for a conviction for aggravated child abuse; and (7) failure to present evidence of child custody proceedings in which Petitioner sought and won custody of his children. Petitioner also contends that he is entitled to post-conviction relief based on cumulative error. Following a thorough review, we affirm the judgment of the post-conviction court.

Jose Lemanuel Hall, Jr. v. State of Tennessee
M2021-01555-CCA-R3-PC
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Angelita Blackshear Dalton

Following his conviction for first degree murder, the Petitioner, Jose Lemanuel Hall, filed a petition for post-conviction relief alleging that he was denied the effective assistance of counsel. The post-conviction court denied the petition after an evidentiary hearing. On appeal, the Petitioner argues that trial counsel failed to meet with him adequately and failed to object to the State’s opening statement. He also argues that the requirement to show actual prejudice in post-conviction proceedings is overly burdensome and conflicts with constitutional protections. We respectfully affirm the judgment of the post-conviction court.

State of Tennessee v. Tibila Aida Tekle
E2022-00686-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Sandra Donaghy

Tabila Aida Tekle was charged in the Monroe County Criminal Court with two counts of
harassment and one count of retaliation for past action for statements she made on
Facebook about employees of the Department of Children’s Services (“DCS”). The
Defendant filed motions to dismiss the indictment, asserting that her statements were
protected by the right to free speech, and the trial court dismissed the charges. The State
appeals the trial court’s dismissal of the harassment charges, arguing that the court made a
pretrial factual determination about an element of the offense, which was a determination
for the jury. Based upon the oral arguments, the record, and the parties’ briefs, we reverse
the judgments of the trial court, reinstate the charges for harassment, and remand the case
to the trial court for further proceedings consistent with this opinion.

State of Tennessee v. Vincent John Elliott, Jr.
M2022-00789-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Vanessa Jackson

The Defendant, Vincent John Elliott, Jr., pled guilty to second degree murder and reserved a certified question of law concerning whether his right to a speedy trial was violated. Also on appeal, the Defendant argues that the trial court abused its discretion by sentencing him to eighteen years instead of the minimum sentence of fifteen years. Upon review, we conclude that we lack jurisdiction to review the Defendant’s certified question and respectfully dismiss that portion of the appeal. We further conclude that the trial court acted within its discretion in sentencing the Defendant. Accordingly, we respectfully affirm the Defendant’s conviction and sentence in all respects.

State of Tennessee v. Johnny Dewayne Boyd
M2021-01057-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Johnny DeWayne Boyd, was convicted by a jury of rape of a child and incest. The trial court imposed an effective thirty-year sentence in the Department of Correction. On appeal, Defendant contends (1) the trial court erred in denying his motion to dismiss due to the State’s failure to file a bill of particulars, and (2) that the trial court abused its discretion in denying Defendant’s motion to continue trial after a court security officer tested positive for COVID-19 and by failing to comply with the Tennessee Supreme Court’s Order on COVID-19 protocol. Following a review of the record, the briefs and oral arguments of the parties, we affirm the judgments of the trial court.

State of Tennessee v. Juan LaSean Perry
M2022-00220-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Russell Parkes

Defendant, Juan Lasean Perry, appeals the denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct an illegal sentence. Discerning no error, we affirm.

Cody Ricky Cofer v. State of Tennessee
E2022-00351-CCA-R3-ECN
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Wesley Thomas Bray

The Petitioner, Cody Ricky Cofer, was convicted in the Cumberland County Criminal
Court of two counts of first degree felony murder and one count of attempted especially
aggravated robbery and received an effective sentence of two consecutive life terms. The
Petitioner filed a petition for writ of error coram nobis based on newly discovered evidence,
and the coram nobis court denied the petition without a hearing because the petition was
untimely. On appeal, the Petitioner claims that the coram nobis court erred by summarily
denying the petition without first considering whether the statute of limitations should be
tolled on due process grounds. The State argues that we should dismiss the appeal because
the Petitioner’s notice of appeal also was untimely. Based upon the oral arguments, the
record, and the parties’ briefs, we agree with the State and conclude that the appeal should
be dismissed.

State of Tennessee v. Antwain Tapaige Sales
M2022-01077-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Antwain Tapaige Sales, appeals the Bedford County Circuit Court’s order dismissing his claim that his judgments of conviction for second degree murder and attempted second degree murder are fraudulent and void. After review, we conclude that the appeal should be dismissed.

State of Tennessee v. Montreal Portis Robinson
W2022-00459-CCA-R3-CV
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Kyle C. Atkins

A Madison County jury found the Defendant, Montreal Portis Robinson, guilty of felony
murder in the perpetration of a theft, especially aggravated kidnapping, robbery, and theft
of property. On appeal, the Defendant argues that the evidence is insufficient to sustain
his convictions. We conclude that the evidence is sufficient to support the Defendant’s
convictions for especially aggravated kidnapping and robbery. However, we also conclude
that the evidence is insufficient to support the Defendant’s convictions for theft and felony
murder in the perpetration of a theft. Accordingly, we dismiss the theft charge, and we
modify the Defendant’s conviction for felony murder to that of second degree murder as a
lesser-included offense. We respectfully remand the case for further proceedings
consistent with this opinion, including the entry of a modified judgment and a sentencing
hearing on the conviction for second degree murder.

State of Tennessee v. Lester Tolliver
W2021-01386-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lee V. Coffee

Defendant, Lester Tolliver, appeals as of right from his jury conviction for aggravated rape,
for which he received a sentence of twenty-five years. On appeal, Defendant contends that
the evidence was insufficient to support his conviction and that the trial court erred by (1)
admitting hearsay statements, specifically the victim’s reporting the rape to a friend and
the victim’s statement to a police officer; (2) admitting the victim’s testimony that she had
been sexually assaulted previously; (3) admitting testimony from an expert witness
regarding why a victim might lie about having had sexual activity in the days preceding a
sexual assault; and (4) denying Defendant’s request for a special jury instruction.
Following our review, we affirm.

Tyler D. Bolton v. State of Tennessee
E2022-00836-CCA-R3-PC
Authoring Judge: Judge Kyle A. Hixson
Trial Court Judge: Judge Stacy L. Street

The Petitioner, Tyler D. Bolton, appeals the Washington County Criminal Court’s denial of his petition for post-conviction relief from his guilty-pleaded convictions for possession of twenty-six grams or more of methamphetamine with intent to sell, unlawful possession of a firearm, and two counts of aggravated burglary.  On appeal, the Petitioner argues that the post-conviction court erred by denying his motion in limine to exclude jail call recordings from the post-conviction hearing.  The Petitioner also argues that the post-conviction court erred by denying relief on his claims alleging that he received the ineffective assistance of trial counsel by trial counsel’s failing to adequately investigate the Petitioner’s mental health history and request a mental health evaluation prior to advising him to accept a plea offer.  We affirm the judgment of the post-conviction court.

State of Tennessee v. Frank M. Green
M2021-01438-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Frank M. Green, was convicted by a Davidson County Criminal Court jury of rape in Counts 1 and 3 and assault by extremely offensive or provocative physical contact in Counts 2 and 4 and was acquitted of the charge of aggravated kidnapping in Count 5. The Defendant filed a post-trial motion for judgment of acquittal as to the rape conviction in Count 3 and the assault conviction in Count 4. The trial court denied this motion but merged Count 3 with Count 1 and merged Count 4 with Count 2. Following a sentencing hearing, the trial court imposed a sentence of ten years for each of the rape convictions and a sentence of eleven months and twenty-nine days for each of the assault convictions and ordered the rape and assault convictions served concurrently, for an effective sentence of ten years. On appeal, the Defendant argues: (1) the State’s faulty election of offenses led the trial court to provide erroneous and misleading jury instructions, which undermined the integrity of the jury’s verdict; (2) the evidence is insufficient to sustain the convictions in count 3 for rape and count 4 for assault; and (3) the convictions in Counts 2 and 4 reflect the incorrect offense class and sentence. Because the State failed to demonstrate beyond a reasonable doubt that errors regarding the election, the charge, and the supplemental jury instructions were harmless, we reverse the Defendant’s convictions and remand the case for a new trial on the offenses of rape in Counts 1 and 3 and the offenses of assault by extremely offensive or provocative physical contact in Counts 2 and 4.

State of Tennessee v. Frank M. Green - Dissenting
M2021-01438-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

I agree with the majority’s conclusion that the State’s election of the offenses was flawed and that the trial court erred in instructing the jury pursuant to the State’s faulty election. Cf. State v. Ellis, 89 S.W.3d 584, 596 (Tenn. Crim. App. 2000) (“[B]ecause the election requirement is ‘fundamental, immediately touching the constitutional rights of an accused,’ a trial court has a duty even absent a request by the defendant to ensure the timely election of offenses by the State and to properly instruct the jury concerning the requirement of a unanimous verdict.” (quoting Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)). I part ways with the majority regarding the remedy to which the Defendant is entitled for the double jeopardy issue which resulted from the State’s flawed election and the court’s reliance upon the election in its jury instructions.

State of Tennessee v. Michael Mosley
M2022-00441-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton

Michael Mosley, Defendant, claims the evidence was insufficient to support his conviction of attempted aggravated assault, that the trial court erred by not requiring the State to make an election as to the precise definition of serious bodily injury for which a conviction was being sought, and that the trial court erred by denying Defendant’s request for two special jury instructions. Discerning no error, we affirm the judgment of the trial court.

State of Tennessee v. Steven Lamont Anderson
No. M2022-00262-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Dee David Gay

A Sumner County jury convicted the defendant, Steven Lamont Anderson, of unlawful possession of a firearm after being convicted of a felony involving violence and unlawful possession of a handgun by a convicted felon, for which he received an agreed-upon sentence of twelve years in confinement. On appeal, the defendant contends the evidence presented at trial was insufficient to support his convictions. The defendant also argues the trial court erred in denying his motion to suppress and in sentencing the defendant as a Range II offender. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

State of Tennessee v. Marlon Jackson
W2022-01288-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey, Jr.

The Defendant, Marlon Jackson, appeals the trial court’s revocation of his three-year
probationary sentence for attempted possession of methamphetamine with the intent to sell
or deliver. The trial court revoked the Defendant’s probation after determining that he
materially violated his probation sentence for engaging in criminal activity and being
charged with new offenses. On appeal, the Defendant asserts that the trial court abused its
discretion when it revoked his probation because the evidence to support the violation was
“inconclusive, contradictory, and based upon unreliable hearsay.” After review, we
conclude that the record supports the trial court’s finding that the Defendant violated the
terms of his probation sentence.

State of Tennessee v. Fredrick Munn
W2022-00675-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James M. Lammey, Jr.

Fredrick Munn, Defendant, appeals from the Shelby County Criminal Court’s order
revoking his probation and ordering him to serve his original three-year sentence in
confinement. Upon review, we reverse the judgment of the trial court and remand for a
new revocation hearing.

State of Tennessee v. Mark Eric Howard
E2021-01195-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Don W. Poole

Defendant, Mark Eric Howard, was convicted after a jury trial of second degree murder, a
Class A felony, and sentenced to twenty-five years in confinement. On appeal, Defendant
argues that the evidence was insufficient to support his conviction for second degree
murder. After a thorough review of the record, we affirm the judgment of the trial court.

Leroy Sexton Jr. v. State of Tennessee
M2022-00100-CCA-R3-PC
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge E. Shayne Sexton

The Petitioner’s original and untimely petition for post-conviction relief was dismissed on the merits because all his claims were either waived or previously determined. Thereafter, the Petitioner filed a second petition alleging that the statute of limitations for his first petition should have been tolled due to his then mental incompetency. The post-conviction court dismissed the second petition, finding that the Petitioner was not mentally incompetent. On appeal, we conclude that, because the Petitioner’s first petition was resolved on the merits, any second or subsequent petition is barred, and any issue regarding the timely filing of the first petition is immaterial. Accordingly, we respectfully affirm the judgment of the post-conviction court.

State of Tennessee v. Kristopher Johnson
E2022-00302-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven Wayne Sword

The Defendant, Kristopher Johnson, was convicted by a Knox County Criminal Court jury
of two counts of facilitation of first degree felony murder, a Class A felony; two counts of
criminally negligent homicide, a Class E felony; two counts of aggravated robbery, a Class
B felony; tampering with evidence, a Class C felony; aggravated burglary, a Class C
felony; and aggravated assault, a Class C felony. See T.C.A. §§ 39-11-403 (2018)
(facilitation), 39-13-202(a)(2) (2018) (subsequently amended) (first degree felony murder),
39-13-212(a) (2018) (criminally negligent homicide), 39-13-402 (2018) (aggravated
robbery), 39-16-503 (2018) (tampering with evidence), 39-14-403 (2018) (repealed and
replaced by § 39-13-1003) (aggravated burglary), 39-13-102 (Supp. 2017) (subsequently
amended) (aggravated assault). The court merged the criminally negligent homicide
convictions with the facilitation of first degree felony murder convictions. The court
sentenced the Defendant, a Range II offender, to thirty years for each of the counts of the
facilitation of first degree felony murder, eighteen years at 85% for each of the counts of
aggravated robbery, ten years for tampering with evidence, ten years for aggravated
burglary, and ten years for aggravated assault. The court imposed partially consecutive
sentencing, with an effective sentence of seventy years. On appeal, the Defendant contends
that: (1) the evidence is insufficient to support his convictions for the homicide and robbery
offenses, (2) the court erred in allowing the State to introduce evidence of the Defendant’s
street gang affiliation, (3) he was denied his fundamental right to cross-examine two
witnesses, (4) the court erred in ruling that a witness’s statement was hearsay, (5) the court
erred in determining that no violation of Tennessee Rule of Evidence 615 regarding
sequestration of witnesses occurred, (6) cumulative trial errors require reversal, and (7) the
court erred in its application of a sentencing enhancement factor. We affirm the judgments
of the trial court.

State of Tennessee v. Charles Hollon
M2022-00815-CCA-R9-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Thomas W. Graham

The Defendant, Charles Hollon, has been charged with second degree murder through the
delivery of fentanyl pursuant to Tennessee Code Annotated section 39-13-210(a)(3). In
this interlocutory appeal, the issue is whether the State must prove beyond a reasonable
doubt that the Defendant knew the substance being unlawfully distributed or delivered was
fentanyl or carfentanil. In a proposed jury instruction, the trial court held that it did, but
we respectfully disagree. Instead, we hold that the State may satisfy this element by
proving beyond a reasonable doubt that (i) the defendant disregarded a substantial and
unjustifiable risk that the substance delivered to the user was fentanyl or carfentanil; and
(ii) the defendant’s disregard of that risk constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the circumstances as viewed from the
defendant’s standpoint. Accordingly, we respectfully vacate the trial court’s order and
remand the case for further proceedings.

State of Tennessee v. Harrison Alexander Mason
W2021-01390-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge J. Weber McCraw

The Defendant, Harrison Alexander Mason, was convicted in the Fayette County Circuit
Court of three counts of rape of a child, three counts of aggravated sexual battery, and one
count of solicitation of a minor and received an effective sentence of fifty-seven years in
confinement. On appeal, the Defendant contends that the trial court committed plain error
by failing to exclude statements made by the victim during her forensic interviews pursuant
to Tennessee Rule of Evidence 404(b); that the trial court committed plain error by giving
a “vague” curative instruction and waiting until the final jury charge to give the instruction;
and that the trial court’s errors require reversal of the convictions under the cumulative
error doctrine. Based upon the oral arguments, the record, and the parties’ briefs, we affirm
the judgments of the trial court.

State of Tennessee v. Quincy M. Gordon
W2021-01190-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

The defendant, Quincy M. Gordon, entered an open plea to one count of forgery, and based
on his prior Michigan convictions, the trial court sentenced the defendant as a Range III,
career offender to six years’ incarceration in the Tennessee Department of Correction. On
appeal, the defendant argues the trial court erred in sentencing him as a Range III, career
offender based on his out-of-state convictions. Following our review, we reverse the
judgment of the trial court and remand for a new sentencing hearing.