Court of Criminal Appeals Opinions

Format: 07/03/2020
Format: 07/03/2020
State of Tennessee v. Eric Bernard Howard
M2019-01900-CCA-R3-CO
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Jennifer Smith

Eric Bernard Howard, Movant, filed a pro se “Motion to Correct Judgment Pursuant to Tennessee Rules of Criminal Procedure 36.1” (the Rule 36.1 Motion). The trial court found that the Rule 36.1 Motion failed to state a colorable claim and summarily denied the Rule 36.1 Motion. We affirm.

Davidson County Court of Criminal Appeals 06/22/20
Reginald McWilliams v. State of Tennessee
W2019-00935-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Paula L. Skahan

The Petitioner, Reginald McWilliams, acting pro se, appeals from the Shelby County Criminal Court’s denial of post-conviction relief for failure to prosecute on the part of the Petitioner. Because the record does not establish an abuse of process, we reverse the judgment of the post-conviction court and remand this matter for proceedings consistent with this opinion

Shelby County Court of Criminal Appeals 06/19/20
Christopher Bailey v. State of Tennessee
W2019-00678-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Paula L. Skahan

Petitioner, Christopher Bailey, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner was convicted of one count of rape of child and sentenced to twenty-five years at one-hundred percent. Petitioner contends on appeal that the
post-conviction court erred in denying the petition for post-conviction relief because he was denied effective assistance of counsel. He contends that trial counsel was ineffective for (1) failing to file a pre-trial motion in limine; (2) failing to object when the State asked the victim to testify about other times in which Petitioner forced the victim to perform oral sex; (3) asking the victim’s stepsister about her opinion of Petitioner’s character for truthfulness; (4) asking the victim why she slept downstairs; (5) failing to object when the State asked the victim about counseling and her medication; and (6) failing to argue during the Rule 412 hearing that Petitioner should be permitted to introduce evidence concerning the victim’s prior sexual behavior. Petitioner further argues: that the cumulative effect of trial counsel’s errors warrants post-conviction relief; that the post-conviction court erred in denying Petitioner’s request for funding for an investigator; and that the post-conviction court erred in denying Petitioner’s request to call the prosecutor as a witness at the post-conviction hearing. Following a review of the briefs and the record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 06/19/20
Cuben Lagrone v. State of Tennessee
E2019-01825-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Bobby R. McGee

The petitioner, Cuben Lagrone, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Knox County Court of Criminal Appeals 06/19/20
State of Tennessee v. Joseph Lester Haven
W2018-01204-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge:

The Defendant, Joseph Lester Haven, was convicted pursuant to a bench trial of rape of a child and two counts of aggravated sexual battery for crimes committed against his stepchildren, and he received an effective forty-year sentence. On appeal, he asserts that the State failed to establish venue, that the evidence was insufficient to support the verdicts, that the State improperly failed to elect the factual bases of the convictions, that the trial court improperly considered evidence of other bad acts included in the forensic interviews, that the forensic interviewer was not qualified under statute, and that the trial court erred in applying enhancement factors to his offenses. Upon a review of the record, we conclude that the State failed to establish venue for the aggravated sexual battery conviction in Count 4, and we reverse this conviction and sentence and remand for any further proceedings. The Defendant has not demonstrated that he is entitled to any other appellate relief, and we affirm the remaining judgments of the trial court.

Obion County Court of Criminal Appeals 06/19/20
State of Tennessee v. Samuel O. McAlister
W2019-00660-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald H. Allen

The Defendant, Samuel McAlister, entered a partially open guilty plea in case number 18-501 for possession of marijuana, possession of a firearm by a convicted felon, and possession of drug paraphernalia; and in case number 18-956, for driving on a revoked license, failing to illuminate his license plate, and violation of the financial responsibility law. The trial court sentenced the Defendant to a total effective sentence of five years in the Tennessee Department of Correction. On appeal, he argues that the trial court abused its discretion by denying his request for alternative sentencing. Upon review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 06/19/20
State of Tennessee v. Mario Johnson
W2019-00934-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

The Appellant, Mario Johnson, appeals the trial court’s summary denial of his motion to correct an illegal sentence. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Shelby County Court of Criminal Appeals 06/19/20
State of Tennessee v. Adonis Reynolds
E2019-01165-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge G. Scott Green

The Appellant, Adonis Reynolds, pled guilty in the Knox County Criminal Court to two counts of burglary of a vehicle, one count of fraudulent use of a credit card, two counts of theft, and one count of evading arrest. Pursuant to the plea agreement, he received an effective three-year sentence in the Tennessee Department of Correction (TDOC). The trial court granted the Appellant judicial diversion and placed him on supervised probation for three years. Subsequently, the trial court revoked his probation and his judicial diversion and ordered that he serve his effective three-year sentence in confinement. On appeal, the Appellant contends that the trial court abused its discretion by revoking his probation and judicial diversion. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 06/19/20
State of Tennessee v. Charles Bernard Griffin
E2019-00969-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge G. Scott Green

The Defendant, Charles Bernard Griffin, appeals his convictions for especially aggravated robbery and possession of a firearm while having a prior felony conviction involving the use or attempted use of force, violence, or a deadly weapon, for which he received an effective sentence of seventy-five years as a career offender. On appeal, the Defendant challenges the sufficiency of the evidence and the trial court’s denial of his motion to bifurcate the trial. We affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/19/20
State of Tennessee v. Samantha Darlene Brewer
E2019-01361-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Tammy M. Harrington

Following a revocation hearing, the trial court revoked the probation of Defendant, Samantha Darlene Brewer, and ordered confinement for her sentence. On appeal, Defendant alleges the trial court abused its discretion and requests split confinement and furlough to substance abuse and mental health treatment courses. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 06/18/20
State of Tennessee v. Juan Ramon Chaves-Abrego
M2018-01880-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella L. Hargrove

A Maury County Circuit Court Jury convicted the Appellant, Juan Ramon Chaves-Abrego, of rape of a child, a Class A felony, and the trial court sentenced him to thirty years to be served at one hundred percent. On appeal, the Appellant contends that the evidence is insufficient to support the conviction, that the admission of the victim’s forensic interview into evidence violated his right to confrontation, that the trial court erred by allowing proof of other bad acts, that cumulative error requires reversal of his conviction, and that his sentence is excessive. Based upon the record and the parties’ briefs, we conclude that the evidence is sufficient to support the conviction, that the Appellant’s sentence is not excessive, and that his remaining issues have been waived because his motion for new trial was untimely. Accordingly, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 06/18/20
State of Tennessee v. Marcus Sturghill, III
W2018-01892-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Kyle C. Atkins

A jury convicted Defendant, Marcus Sturghill III, of two counts of aggravated robbery, and he received an eight-year sentence. Defendant was seventeen at the time he committed the crimes, and he gave a statement to law enforcement outside the presence of his parents, confirming that he had possession of a firearm on the date of the robbery. Defendant appeals the trial court’s denial of his motion to suppress his statement to police. We conclude that the trial court did not err in admitting the statement, and we affirm the convictions.

Madison County Court of Criminal Appeals 06/17/20
State of Tennessee v. Rodney Miller
W2019-00080-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James M. Lammey

A Shelby County Jury found Defendant, Rodney Miller, guilty of rape of a child, aggravated statutory rape, and aggravated sexual battery. The trial court imposed a sentence of thirty-six years for rape of a child, four years for aggravated statutory rape, and ten years for aggravated sexual battery to be served consecutively in confinement. On appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction for rape of a child; (2) whether the trial court properly admitted the victim’s medical history provided during her SANE examination; (3) whether the trial court properly denied Defendant’s motion for a bill of particulars; (4) whether the trial court erred by failing to merge Defendant’s conviction for aggravated sexual battery into his conviction for rape of a child; (5) whether the trial court erred by ordering consecutive sentences; and (6) cumulative error. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 06/17/20
Zacharious Cole v. State of Tennessee
W2019-00841-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Kyle Atkins

The Petitioner, Zacharious Cole, appeals from the order of the Madison County Circuit Court denying post-conviction relief from his jury convictions of attempted first-degree murder, especially aggravated robbery, and employing a firearm during the commission of a dangerous felony, for which he received an effective term of twenty-six years’ imprisonment. Following an evidentiary hearing, the
post-conviction court determined that trial counsel’s advice to the Petitioner to enter a post-sentencing waiver of his right to direct appeal was deficient but not prejudicial. On appeal, the Petitioner argues that the post-conviction court erred in denying relief. Because the record shows that the Petitioner was denied the right to pursue a direct appeal based on ineffective assistance of counsel, this matter is remanded to the trial court for entry of an order allowing the filing of a motion for new trial. See T.C.A.
§ 40-30-113(a)(3). Accordingly, the judgment of the post-conviction court is reversed, and this matter is remanded for proceedings consistent with this opinion.

Madison County Court of Criminal Appeals 06/17/20
Thomas Mitchell v. State of Tennessee
W2019-01092-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Carolyn Wade Blackett

The Petitioner, Thomas Mitchell, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction for burglary, for which he is serving a ten-year, Range III sentence. He contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claims that (1) counsel failed to object and to request a mistrial when a witness testified that a police officer knew the Petitioner by name, (2) counsel failed to impeach a witness with prior inconsistent statements, (3) counsel failed to call a police officer as a witness, (4) counsel stated in closing argument that a witness had given a statement to the police in which the witness said the Petitioner entered one of the buildings from which the Petitioner was alleged to have removed wiring, (5) counsel failed to state explicitly in closing argument that the jury should consider lesser included offenses, and (6) the cumulative effect of counsel’s deficient performance in multiple instances deprived the Petitioner of the effective assistance of counsel. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 06/17/20
Shawn Dallas Owen v. State of Tennessee
E2019-01242-CCA-R3-PC
Authoring Judge: Judge. D. Kelly Thomas, Jr.
Trial Court Judge: Judge G. Scott Green

The Petitioner, Shawn Dallas Owen, pled guilty to one count each of burglary, identity theft, credit card fraud, forgery, simple possession of marijuana, and driving on a revoked license. The Petitioner was given a total effective sentence of fourteen years to be served on supervised probation. Upon being served with a warrant alleging the Petitioner violated his probation, he subsequently filed a petition seeking post-conviction relief from his guilty plea, alleging, among other things, that trial counsel was ineffective because of the failure to properly advise the Petitioner regarding the grading of the credit card fraud offense to which he was pleading guilty. The Petitioner appeals the postconviction court’s denial of relief. Following our review, we affirm.

Knox County Court of Criminal Appeals 06/17/20
State of Tennessee v. Precious Briana Horton
M2019-00826-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

A jury convicted the Defendant, Precious Briana Horton, of two counts of aggravated robbery, and the Defendant pleaded guilty to one count of theft of property valued under $500. The trial court sentenced the Defendant to eight years of incarceration. On appeal, the Defendant contends that: (1) the State exercised its preemptory challenges in a discriminatory manner; (2) the trial court erred when it excluded testimony regarding the Defendant’s mental health; (3) the trial court prohibited her from offering to the jury her pretrial, out-of-court statement; and (4) the evidence is insufficient to sustain one of her aggravated robbery convictions. After review, we affirm the trial court’s judgments.

Davidson County Court of Criminal Appeals 06/17/20
State of Tennessee v. Palikna Tosiwo Tosie
M2019-00811-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge William R. Goodman, III

The Defendant, Palikna Tosiwo Tosie, pleaded guilty to aggravated assault and reckless endangerment, and the trial court sentenced him to an effective sentence of six years to be served on probation. On appeal, the Defendant contends the trial court erred when it denied his request for judicial diversion. After review, we affirm the trial court’s judgment.

Montgomery County Court of Criminal Appeals 06/17/20
State of Tennessee v. Timothy Dwayne Ison, Alias
E2018-02122-CCA-R3-CD
Authoring Judge: Judge. D. Kelly Thomas, Jr.
Trial Court Judge: Judge.G. Scott Green

The Defendant, Timothy Dwayne Ison, alias, was convicted by a jury of first degree premeditated murder, for which he received a sentence of life imprisonment without the possibility of parole. On appeal, the Defendant argues (1) that there was insufficient evidence to support his conviction, specifically, challenging the element of premeditation, and (2) that evidence from social media posts was improperly admitted. After a thorough review of the record, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 06/17/20
State of Tennessee v. Cardis Terran Burns
E2018-01685-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

Defendant, Cardis Terran Burns, appeals his convictions of multiple drug offenses and driving offenses. Defendant appealed, arguing that the trial court improperly admitted text messages from a phone seized during a traffic stop. While the appeal was pending, Defendant died. Counsel for Defendant filed a motion to abate ab initio. After the release of State v. Al Mutory, 581 S.W.3d 741 (Tenn. 2019), this Court denied Defendant’s motion and determined that the appeal should proceed despite Defendant’s death. After our review, we affirm the judgments of the trial court but remand for entry of a new judgment form to correct a clerical error to reflect that the conviction for possession of methamphetamine in a drug free zone with intent to deliver (count 4) merged with the conviction for possession of methamphetamine in a drug free zone with intent to sell (count 3).

Knox County Court of Criminal Appeals 06/16/20
Robert Nelson Buford, III v. State of Tennessee
M2018-02176-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Angelita Blackshear Dalton

Petitioner, Robert Nelson Buford, III, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner was convicted of facilitation of felony murder and facilitation of attempted especially aggravated robbery. The convictions were affirmed on direct appeal. State v. Robert Nelson Buford, III, No. M2011-00323-CCA-R3-CD, 2013 WL 375424, at *1-6 (Tenn. Crim. App. Jan. 31, 2013). 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.

Davidson County Court of Criminal Appeals 06/16/20
State of Tennessee v. Brian Keith Capps
M2019-00280-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Russell Parkes

Defendant, Brian Keith Capps, was charged in four separate indictments with two counts of possession with intent to sell over 0.5 grams of methamphetamine within 1,000 feet of a school; three counts of sale of over 0.5 grams of methamphetamine within 1,000 feet of a school; two counts of possession of drug paraphernalia; one count of possession with intent to sell Oxycodone; one count of driving on a revoked license; one count of violation of the registration law; and one count of tampering with evidence. Defendant pleaded guilty to one count of possession with intent to sell over 0.5 grams of methamphetamine and two counts of sale of methamphetamine in a drug-free zone. All of the remaining counts were dismissed. Defendant received concurrent sentences of eight years to be served at 100 percent for each of his sale of methamphetamine convictions. He was sentenced to eight years to be served at 30 percent for his possession with intent to sell methamphetamine conviction, which was ordered to be served consecutively to his other sentences, for a total effective sentence of 16 years with 8 years to be served at 100 percent. Defendant sought to withdraw his guilty pleas. Following an evidentiary hearing, the trial court denied Defendant’s motion. Defendant appeals. Having reviewed the record and the briefs of the parties, we affirm the judgment of the trial court denying the motion to withdraw the guilty pleas. However, there are clerical errors in the judgments in case number 26162. The judgments show a 30 percent release eligibility. The plea agreement was for 100 percent service of the sentence. The trial court must enter corrected judgments upon remand.

Maury County Court of Criminal Appeals 06/16/20
State of Tennessee v. DeMorris McKenzie
E2018-02226-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Bobby R. McGee

Defendant, DeMorris McKenzie, was indicted by the Knox County Grand Jury for one count of being a felon in possession of a firearm, one count of first degree premeditated murder, and one count of driving on a revoked license. Following a jury trial, Defendant was convicted as charged on all three counts. Following a sentencing hearing, Defendant was sentenced to life imprisonment for his first degree murder conviction. He was sentenced to serve two years for his firearm conviction and six months for his driving on a revoked license conviction. Those sentences were ordered to run concurrently with his life sentence. In this appeal as of right, Defendant contends that: 1) the trial court erred by allowing a witness to testify as to what she observed in security video footage of the apartment complex where the shooting occurred; 2) the evidence at trial was insufficient to support Defendant’s conviction for first degree murder; and 3) Defendant is entitled to relief under the cumulative error doctrine. Having reviewed the entire record and the briefs of the parties, we find no reversible error and affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/16/20
State of Tennessee v. Justin L. Kiser
E2019-01296-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Justin L. Kiser, was convicted by a Union County Criminal Court jury of five counts of especially aggravated kidnapping, a Class A felony. See T.C.A. § 39-13- 305 (2018). On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions; (2) the trial court erred by not requiring the State to show its good faith efforts to locate a missing witness before declaring that witness unavailable for trial; and (3) the trial court erred by sentencing the Defendant to twenty-one years’ confinement. We affirm the judgments of the trial court.

Union County Court of Criminal Appeals 06/16/20
Mark Lipton v. State of Tennessee
E2019-01037-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James L. Gass

Petitioner was convicted of aggravated assault by a Sevier County jury. Subsequently, Petitioner filed a direct appeal. This Court affirmed the judgments of the trial court. State v. Mark Lipton, No. E2012-02197-CCA-R3-CD, 2014 WL 4365969, at *16 (Tenn. Crim. App. Sept. 14, 2014), perm. app. denied (Tenn. Jan. 15, 2015). Petitioner timely filed a petition for post-conviction relief on January 12, 2016. On February 2, 2017, Petitioner filed a petition seeking relief under the Post-Conviction DNA Analysis Act of 2001. The same day Petitioner filed the petition for DNA analysis, he filed an amended post-conviction petition. Petitioner filed two additional amended post-conviction petitions. In the final amended petition, Petitioner abandoned arguments in his prior petitions and argued that he received ineffective assistance of counsel because trial counsel (1) failed to file a motion to disqualify the District Attorney; (2) failed file a change of venue motion; (3) failed to request specific Tennessee Rule of Evidence 404(b) findings of fact; and (4) erred by calling a particular trial witness. The post-conviction court summarily dismissed the petition for DNA analysis and the Tennessee Rule of Evidence 404(b) issue in the petition for post-conviction relief. The post-conviction petition denied relief on the remaining issues. After a reviewing the record, we affirm the judgment of the post-conviction court.

Sevier County Court of Criminal Appeals 06/15/20