COURT OF CRIMINAL APPEALS OPINIONS

State of Tennessee v. Hollie Whipple
W2023-01383-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Weber McCraw

Defendant, Hollie Whipple, pled guilty to especially aggravated burglary, aggravated
assault by use of a deadly weapon, and aggravated assault in connection with her
perpetration of a home invasion in Fayette County. After a sentencing hearing, the trial
court imposed an effective sentence of ten years’ incarceration at 100% service rate. She
argues on appeal that her sentence is excessive and the trial court erred in denying
probation. After review, we affirm the judgments of the trial court.

Terrance Holliday v. State of Tennessee
W2023-01179-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Carlyn L. Addison

The Petitioner, Terrance Holliday, appeals the post-conviction court’s denial of his petition
for post-conviction relief, arguing that the post-conviction court erred by denying his
motion for recusal and by finding that he received effective assistance of counsel. Based
on our review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Denver Christian Smith
E2023-00182-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Lisa N. Rice

The Defendant, Denver Christian Smith, was convicted by a Washington County Criminal
Court jury of first degree felony murder, attempted second degree murder, and attempted
carjacking. See T.C.A. §§ 39-13-202 (2014) (subsequently amended) (first degree
murder), 39-13-210 (2014) (subsequently amended) (second degree murder), 39-13-404
(2018) (carjacking), 39-12-101 (2018) (criminal attempt). On appeal, the Defendant
contends that: (1) the trial court erred when it denied the Defendant’s motion to suppress
his statements to the police and (2) no reasonable trier of fact could find that the Defendant
failed to establish his insanity defense by clear and convincing evidence. We affirm the
judgments of the trial court.

State of Tennessee v. Larry E. Orozco
M2023-00874-CCA-R3-CD
Authoring Judge: Presiding Judge Camille R. McMullen
Trial Court Judge: Judge Barry R. Tidwell

The Defendant, Larry E. Orozco, was originally convicted of two counts of attempted
second-degree murder, two counts of unlawful employment of a firearm during an attempt
to commit a dangerous felony, and seven counts of reckless endangerment committed with
a deadly weapon, for which he received an effective sentence of thirty-one years’
imprisonment. This court affirmed his convictions on direct appeal; however, appellate
review of his sentence was waived because the record did not include the sentencing
hearing transcript. The Defendant subsequently filed a post-conviction petition alleging
ineffective assistance of counsel, and the trial court granted a delayed appeal. The
Defendant now challenges the consecutive nature of his sentence and contends the trial
court erred in finding that he was a dangerous offender, see Tenn. Code Ann. § 40-35-
115(b)(4), and in failing to make the necessary findings pursuant to State v. Wilkerson,
905 S.W.2d 933 (Tenn. 1995). Upon our review, we detect clerical errors in the judgments
and remand for entry of corrected judgments in counts 10, 11, 12, 16, 17, and 19. In all
other respects, we affirm.

Kevin Lamont French v. State of Tennessee
M2023-01579-CCA-R3-ECN
Authoring Judge: Presiding Judge Camille R. McMullen
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, acting pro se, appeals the Davidson County Criminal Court’s summary dismissal of his petition for a writ of error coram nobis. Upon our review, we affirm.

State of Tennessee v. Ronnie Dale Whitener
M2023-00618-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Wesley Thomas Bray

In 2020, the Petitioner, Ronnie Dale Whitener, pleaded guilty to one count of the sale of and one count of the possession of less than 0.5 grams of methamphetamine, as well as one count of theft and one count of being a felon in possession of a handgun. The trial court sentenced him to an effective sentence of ten years of incarceration. In March 2023, the Petitioner filed a petition for post-conviction relief, which is not included in the record. The trial court summarily dismissed the petition as untimely, and the Petitioner appeals. After review, we affirm the trial court’s dismissal.

John David Smartt v. State of Tennessee
M2023-00104-CCA-R3-PC
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Larry B. Stanley, Jr.

Petitioner, John David Smartt, appeals the denial of his post-conviction petition, arguing that the post-conviction court erred in denying his claims that trial counsel was ineffective by failing to prepare him to testify and failing to object to testimony concerning a recorded phone call between the victim (“J.S.”)¹ and Petitioner. Following our review of the entire record, oral arguments, and the briefs of the parties, we affirm the judgment of the post-conviction court.

State of Tennessee v. John Edward Graham
E2023-01066-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven Wayne Sword

A Knox County jury convicted Defendant of Class E felony theft of property valued at more than $1,000 but less $2,500. Defendant claims that the evidence was insufficient to sustain the conviction and that the trial court erred in denying Defendant the right to enter relevant evidence. Following our review, we determine that the evidence was sufficient for the jury to find Defendant guilty and that the trial court properly excluded the evidence because it was not properly authenticated. We affirm the judgment of the trial court.

State of Tennessee v. Rodney Heatherly
M2023-00264-CCA-R3-CD
Authoring Judge: Presiding Judge Camille R. McMullen
Trial Court Judge: Judge M. Caleb Bayless

This is an appeal from the trial court’s order of restitution. The Appellant asserts error,
and the State concedes. After review, we reverse the trial court’s judgment and remand the
case for a new restitution hearing.

State of Tennessee v. Michael David Mosley
M2023-00475-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Angelita Blackshear Dalton

Defendant, Michael David Mosley, appeals his Davidson County Criminal Court convictions for two counts of first degree murder, one count of attempted first degree murder, and one count of assault, for which Defendant received a total effective sentence of two consecutive life terms plus 40 years. Defendant asserts on appeal that: (1) the indictment was invalid because it was signed by an Assistant District Attorney General; (2) the trial court erred by allowing evidence of other bad acts in contravention of Tennessee Rule of Evidence 404(b); (3) the trial court’s instructions to the jury should have included a “no duty to retreat” instruction; (4) the State made improper comments during closing argument; (5) the evidence was insufficient to show premeditation; and (6) the trial court abused its discretion by imposing consecutive sentencing.¹ Having reviewed the entire record on appeal, the parties’ briefs, and oral arguments, we affirm Defendant’s convictions and sentences.

Jason L. White v. State of Tennessee
W2023-01177-CCA-R3-ECN
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge James Jones, Jr.

Petitioner, Jason L. White, appeals the Shelby County Criminal Court’s denial of his “Petition for Writ of Error Coram Nobis.” Following our review of the entire record, the briefs and oral arguments of the parties, and the applicable law, we affirm the judgment of the trial court.

State of Tennessee v. Jeremie Scott Modine
M2022-01183-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

A Maury County jury convicted Defendant, Jeremie Scott Modine, of one count of rape,
one count of domestic assault, three counts of violating a no-contact order, and two counts
of violating a protective order. Defendant argues on appeal that (1) the trial court
committed plain error in constructively amending the indictment to charge rape by lack of
consent, and (2) that the trial court erred in denying alternative sentencing. After careful
consideration, we hold that the trial court committed plain error in constructively amending
the indictment by instructing the jury on a mode of liability not charged in the indictment.
The trial court did not abuse its discretion in denying alternative sentencing. We therefore
vacate Defendant's rape conviction and remand this matter for a new trial on that count of
the indictment as well as correction of judgment forms as outlined in this opinion.

Tyler Keith Parrish v. State of Tennessee
M2023-01270-CCA-R3-PC
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge M. Wyatt Burk

Petitioner, Tyler Keith Parrish, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

State of Tennessee v. Gregory Tyrone Dotson
M2023-00430-CCA-R3-CD
Authoring Judge: Presiding Judge Camille R. McMullen
Trial Court Judge: Judge Angelita Blackshear Dalton

This is an appeal from the order of the trial court revoking a community corrections sentence. On February 18, 2022, the Appellant, Gregory Tyrone Dotson, entered a guilty plea to aggravated assault with a deadly weapon, vandalism, and possession with intent to sell .5 grams or more of a substance containing cocaine, for which he received an effective sentence of ten years to be served on community corrections. Following an evidentiary hearing, the trial court revoked the Appellant’s community corrections sentence based on the preliminary hearing testimony of Able Aguilar, the victim of the aggravated robbery as alleged in the violation warrant, and imposed the original ten-year sentence in confinement. On appeal, the Appellant contends the admission of Aguilar’s preliminary hearing testimony violated his confrontation rights because there was an insufficient showing of good cause or reliability. He additionally argues the trial court erred in considering an offense that was not included in the violation warrant to revoke the Appellant’s community corrections sentence and in ordering complete confinement. After review, we affirm the judgments of the trial court.

Braylen Bennett v. State of Tennessee
E2022-01746-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Braylen Bennett, appeals the denial of his petition for post-conviction relief,
arguing that he was denied the effective assistance of trial counsel, that his guilty pleas
were unknowing, unintelligent, and involuntary, and that the cumulative effect of trial
counsel’s deficiencies in performance warrants post-conviction relief. Based on our
review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Orlando Nichols
W2023-01183-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Orlando Nichols, was convicted in the Shelby County Criminal Court of especially aggravated kidnapping and aggravated rape, Class A felonies, and received consecutive twenty-five-year sentences to be served at one hundred percent.  On appeal, the Defendant contends that (1) the time delay between the commission of the offenses and the issuance of the indictment violated his right to due process; (2) his effective fifty-year sentence is excessive; and (3) the evidence is insufficient to support his convictions.  Upon review, we affirm the judgments of the trial court.

State of Tennessee v. Anthony Jared Ross
E2023-00381-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Rex H. Ogle

I dissent from the majority’s conclusion that the case must be remanded for
resentencing on the basis that the record fails to reflect that the trial court considered a
validated risk and needs assessment (“RNA”). The majority concludes from the parties’
arguments and from the absence of an RNA in the appellate record that no RNA was
prepared and, therefore, that the trial court did not consider one. See T.R.A.P. 13(c)
(limiting an appellate court to consideration of those facts which appear in the record or
are within the parameters of certain post-judgment facts of which the court may take
judicial notice pursuant to T.R.A.P. 14); Threadgill v. Board of Prof’l Resp., 299 S.W.3d
792, 812 (Tenn. 2009) (stating that allegations in pleadings or a party’s brief are not
evidence that is before an appellate court for review), overruled on other grounds by
Lockett v. Board of Prof’l Resp., 380 S.W.3d 19, 28 (Tenn. 2012); State v. Draper, 800
S.W.2d 489, 493 (Tenn. Crim. App. 1990); State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988). As the majority has observed, the Defendant did not object to the trial
court’s sentencing the Defendant in the purported absence of an RNA at sentencing.

State of Tennessee v. Talvin D. Armstrong
M2022-01164-CCA-R3-CD
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge Stella L. Hargrove

A Maury County jury found Defendant, Talvin D. Armstrong, guilty of one count of possession of 0.5 grams or more of cocaine with intent to sell and one count of possession of drug paraphernalia. The trial court imposed an effective sentence of fifteen years in the Tennessee Department of Correction (TDOC). On appeal, Defendant argues that: (1) he was coerced into waiving his confrontation rights as to two witnesses who contracted COVID-19 and were permitted to testify at trial remotely; (2) the trial court erred in introducing the affidavit of complaint supporting the search warrant for the house where the drugs and paraphernalia were found; and (3) he was entitled to a mistrial based on a witness’s reference to the Department of Probation and Parole. 1 After review, we affirm the judgments of the trial court.

State of Tennessee v. Anthony Jared Ross
E2023-00381-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Rex H. Ogle

The Defendant, Anthony Jared Ross, pled guilty to one count of carjacking, and after a sentencing hearing, the trial court sentenced him to serve a term of nine years and to pay restitution. On appeal, the Defendant argues that the trial court erred in imposing a sentence without having or considering the results of a validated risk and needs assessment as required by Tennessee Code Annotated section 40-35-210(b). Our review reveals that the General Assembly has mandated that a sentence must be based, in part, upon the risk and needs assessment. Because this required sentencing information was never prepared, and consequently not considered by the court and the parties, we respectfully remand this case for resentencing. We also remand the case for entry of a judgment reflecting the appropriate disposition of other charges.

State of Tennessee v. Rickey Na'Tarius Porter
E2023-00876-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Andrew Freiberg

Defendant, Rickey Na’Tarius Porter, appeals the consecutive six-year sentences he
received after pleading guilty to one count of aggravated burglary, two counts of
aggravated assault, and one count of employment of a firearm during the commission of a
dangerous felony. Because the trial court improperly sentenced Defendant to the maximum
sentence in the range on each offense as an especially mitigated offender, we reverse the
judgments of the trial court and remand for resentencing.

Terrance Reece v. State of Tennessee
E2023-00305-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Terrance Reece, appeals from the Knox County Criminal Court’s denial of
post-conviction relief from his convictions for four counts of weapons violations, three
counts of aggravated assault, and one count of vandalism and his effective twenty-two-year
sentence. On appeal, the Petitioner contends that the post-conviction court erred by
denying relief on his ineffective assistance of counsel claims and that he was prejudiced by
the cumulative effect of counsel’s multiple instances of deficient performance. We reverse
the judgment of the post-conviction court and remand this case for a new trial.

State of Tennessee v. Mykhah Calvin Simon
M2023-00814-CCA-R3-CD
Authoring Judge: Judge Kyle A. Hixson
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Mykhah Calvin Simon, appeals his convictions for possession of one-half gram or more of methamphetamine with intent to sell and deliver, possession of less than one-half gram of fentanyl with intent to sell and deliver, and driving on a suspended license, second offense. On appeal, the Defendant argues that (1) the evidence was insufficient to sustain his convictions and (2) his sentence was excessive. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Brady O'Brien Holmgren
M2023-00795-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge James A. Turner

The trial court furloughed the Defendant, Brady O’Brien Holmgren, to a mental health court program following his convictions for domestic assault and aggravated assault. The furlough was later revoked, and he was ordered to serve his sentence. Nearly a year later, the Defendant filed a motion to modify his sentence. The trial court denied the motion, and the Defendant appealed. Upon our review, we hold that the Defendant has waived any issues by failing to properly prepare his brief in accordance with Tennessee Rule of Appellate Procedure 27. Accordingly, we respectfully affirm the trial court’s judgment.

State of Tennessee v. Emily Ashton Williams and Joel Scott Sweeney
M2023-00606-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Jennifer Smith

In this consolidated appeal, the defendants, Emily Ashton Williams and Joel Scott
Sweeney, appeal their Davidson County Criminal Court jury convictions of aggravated
child neglect. Defendant Sweeney argues that the evidence was insufficient to support his
conviction, that the trial court committed plain error by failing to require the State to make
an election of offenses, and that the trial court erred in sentencing him. Defendant Williams
argues that the evidence was insufficient to support her conviction. Discerning no
reversible error, we affirm.

State of Tennessee v. Aaron Michael King
E2021-01375-CCA-R3-CD
Authoring Judge: Judge Kyle A. Hixson
Trial Court Judge: Judge G. Scott Green

The Defendant, Aaron Michael King, appeals his jury convictions for rape, rape of a child, statutory rape by an authority figure, incest, aggravated sexual battery, especially aggravated sexual exploitation of a minor, tampering with evidence, especially aggravated kidnapping, and aggravated kidnapping. For these convictions, he received an effective seventy-seven-year sentence. On appeal, the Defendant argues that (1) there was insufficient evidence to support his kidnapping convictions because they were merely incidental to the contemporaneous rapes; (2) the trial court erred by failing to grant his motion for a mistrial after a State’s witness impermissibly vouched for the victim’s credibility; (3) the trial court erred by failing to grant his motion for new trial where defense counsel, who was acting as treasurer for the prosecuting assistant district attorney general’s campaign for a general sessions court judgeship during the Defendant’s trial, had an impermissible conflict of interest; and (4) the cumulative effect of these errors entitle him to a new trial. After our review, we conclude that sufficient evidence supports the challenged convictions, that the trial court properly denied a mistrial, and that the Defendant is not entitled to relief pursuant to the cumulative error doctrine. We further conclude that no adverse effect resulted from the improper conflict of interest. We affirm the judgments of the trial court.