State of Tennessee v. Daniel E. Pottenbaum, Sr.
The Petitioner, Daniel E. Pottebaum, Sr., contends that he received the ineffective assistance of counsel at his retrial and cites the following bases in support of that contention: (1) trial counsel’s failure to object to the Petitioner’s testimony from his first trial being read into the record at his second trial where he chose not to testify; (2) trial counsel’s failure to move for a severance of the domestic assault offense from the unrelated sexual abuse offenses; and (3) trial counsel’s failure to object to the jury instruction on flight. After reviewing the record and the applicable authorities, we affirm the judgment of the post-conviction court. |
Davidson | Court of Criminal Appeals | |
Conoly Brown, et al v. Metropolitan Government of Nashville and Davidson County, Tennessee
The Metropolitan Council adopted a series of three ordinances that (1) created a new zoning classification called Specific Planning (SP); (2) rezoned over 700 parcels of property to SP zoning; and (3) amended permitted uses in SP zones to exclude certain types of financial services, specifically check cashing services not part of a bank. The plaintiffs owned property on which that type of service was conducted and another parcel on which they intended to conduct the excluded services. Their parcels were among those rezoned as SP. We reverse the trial court’s holding that the plaintiffs’ challenge should have been brought as a common law writ of certiorari action because the act of rezoning by amending the zoning ordinance is a legislative act which is reviewable in a declaratory judgment action. We also hold that the ordinance rezoning the 700 parcels was invalid because it was not consistent with the enabling ordinance creating the SP classification. |
Davidson | Court of Appeals | |
Kimberly Lou Uselton et vir, Terry Twayne Uselton v. Jessica Walton and Clinton Brandon Woodard
This is a grandparent visitation case. The biological parents of the child at issue were never married. When the child was born, the father was in the military and away most of the time. The mother permitted the father’s parents, the petitioners in this case, to have liberal visitation with the child. As time went on, the mother got married and had children with her new husband. When the subject child was five years old, the mother limited the grandparents’ visitation with the child, but she did not end it. Dissatisfied with the limitations, the grandparents filed this petition for court-ordered visitation pursuant to the Grandparent Visitation Statute, Tennessee Code Annotated § 36-6-306. The trial court granted the petition and ordered a visitation schedule that essentially allowed the grandparents to have the father’s visitation rights when he was away. The court-ordered schedule even provided for visitation for the grandparents in the event the father chose to exercise all of the visitation to which he was entitled. The mother now appeals. We hold that the trial court erred in essentially placing the paternal grandparents in the stead of the father, and that the Grandparent Visitation Statute is not applicable because there was no proof that the mother opposed the grandparents’ visitation before the grandparents filed their petition for court-ordered grandparent visitation. Therefore, we reverse and dismiss the petition with prejudice. |
Dickson | Court of Appeals | |
Kimberly Lou Uselton et vir, Terry Twayne Uselton v. Jessica Walton and Clinton Brandon Woodard - Dissent
This is a case involving the Grandparent Visitation Statute in which the grandparents unquestionably played a significant role in the child’s life. |
Dickson | Court of Appeals | |
Suzanne W. Butler v. The Metropolitan Government of Nashville and Davidson County
This appeal arises from a claim under the Governmental Tort Liability Act for injuries sustained by an employee of the Metropolitan Police Department that allegedly resulted from a fall in the break room at her workplace. The employee alleged that the chair she attempted to sit in, which had caster wheels, constituted a dangerous condition because it was on an uncarpeted, tile floor. She also alleged that the Metropolitan Government had notice of the dangerous condition and was negligent in failing to provide a safe work environment and in permitting the dangerous condition to remain. Following a bench trial, the court dismissed the action finding that Plaintiff failed to prove her negligence claim by a preponderance of the evidence because the evidence did not establish that the Metro Police Department had actual or constructive notice of any dangerous condition with sufficient time to take corrective action. We affirm. |
Davidson | ||
Phillip Burt v. Donald L. MacTavish and Barbara W. MacTavish, et al.
This case presents the issue of whether the trial court properly dismissed the Appellees, Donald and Barbara MacTavish, as parties from the lawsuit below because Plaintiff’s complaint failed to state a claim upon which relief could be granted pursuant to Rule 12 of the Tennessee Rules of Civil Procedure. Phillip Burt, Plaintiff below, appeals the trial court’s dismissal of all claims against Donald and Barbara MacTavish. We vacate the trial court’s order granting dismissal and remand for further proceedings. |
Knox | Court of Appeals | |
Dean Moore, et al. v. Paul Brock, et al.
Dean Moore, Trustee for the Dean Henry Moore Living Trust (“Plaintiff”), Bobby Sullivan, and Willis Songer sued Paul Brock, Sanford Quay, and Russ Quay (“Defendants”) seeking, among other things, a declaration of a boundary line and a judgment for slander of title. After a bench trial, the Trial Court entered its order on June 19, 2012 finding and holding, inter alia, that Plaintiff has superior title over Defendants to the disputed real property, that the title Defendants claimed by quitclaim deed from Jerry Edmonds shall be held for naught, and that Plaintiff did not prove slander of title. Plaintiff appeals to this Court raising an issue regarding whether the Trial Court erred in dismissing his claim for slander of title. Defendants raise an issue regarding whether the Trial Court erred in finding for Plaintiff on the boundary line issue. We find that the evidence does not preponderate against the Trial Court’s findings with regard either to the boundary line dispute or to Plaintiff’s slander of title claim, and we affirm. |
Bledsoe | Court of Appeals | |
State of Tennessee v. Antonio Grandberry - Dissenting In Part and Concurring In Part
After review of the record in this case, I am unable to agree with majority’s conclusion that the evidence is insufficient to support the conviction for especially aggravated robbery. The majority bases is conclusion upon the fact that the evidence established only mere presence at the scene on the part of the Defendant rather than an intent to participate in the ongoing crime of robbery. The majority acknowledges that the Defendant is guilty of aggravated assault. I conclude that there is no logical reasoning behind the aggravated assault except in furtherance of the robbery. When “viewing the evidence in the light most favorable to the prosecution” as is the required standard, see Jackson, 443 U.S. at 319, I disagree that the evidence fails to establish that the Defendant “knowingly, voluntarily and with common intent joined with the principal offender in the commission of the robbery.” See Sherman, 266 S.W.3d at 408. |
Shelby | Court of Criminal Appeals | |
State of Tennessee v. Dwaylan Dupree House
The Defendant, Dwaylan Dupree House, contends (1) that the evidence presented at trial was insufficient to support his jury convictions, (2) that the trial court erred in denying his motion for judgment of acquittal and motion for new trial, and (3) that the trial court’s imposition of a ten-year sentence and $2,882.22 in restitution was excessive. Following our review of the record and the applicable authorities, we affirm the Defendant’s convictions for vandalism and burglary, reverse the sentence imposed, and remand for resentencing. |
Lauderdale | Court of Criminal Appeals | |
Mark Burell Parrish v. Tammy Jo Scott Parrish
This is a divorce case in which the award of alimony in futuro is questioned. Appellant Husband and Appellee Wife were married for approximately thirty years. The trial court granted Husband a divorce, divided certain marital property and debt, and awarded Appellee Wife alimony in futuro in the amount of $850 per month until death or remarriage. Appellant Husband appeals only the award of alimony. From the totality of the circumstances, and specifically based upon Wife’s health issues, her level of education, her employment history, and past earnings, it does not appear that rehabilitation will be possible. Accordingly, we conclude that the trial court did not abuse its discretion in the type and amount of alimony awarded. Wife’s request for attorney’s fees on appeal is denied. Affirmed and remanded. |
Henderson | Court of Appeals | |
State of Tennessee v. Antonio Grandberry
Antonio Grandberry (“the Defendant”) was convicted by a jury of especially aggravated robbery. Pursuant to an agreement between the Defendant and the State, the trial court sentenced the Defendant to eighteen years’ incarceration. On appeal, the Defendant argues that the evidence presented at trial was insufficient to support his conviction. Additionally, the Defendant asserts that the trial court erred in not instructing the jury on the offense of facilitation of especially aggravated robbery. After a thorough review of the record and the applicable law, we conclude that the evidence is insufficient to support a conviction of especially aggravated robbery or any of the lesser-included offenses pertaining to robbery but is sufficient as to the lesser-included offense of aggravated assault. Accordingly, we modify the Defendant’s especially aggravated robbery conviction to aggravated assault and remand this matter for a new sentencing hearing. |
Shelby | Court of Criminal Appeals | |
Suzanne W. Butler v. The Metropolitan Government of Nashville and Davidson County
This appeal arises from a claim under the Governmental Tort Liability Act for injuries sustained by an employee of the Metropolitan Police Department that allegedly resulted from a fall in the break room at her workplace. The employee alleged that the chair she attempted to sit in, which had caster wheels, constituted a dangerous condition because it was on an uncarpeted, tile floor. She also alleged that the Metropolitan Government had notice of the dangerous condition and was negligent in failing to provide a safe work environment and in permitting the dangerous condition to remain. Following a bench trial, the court dismissed the action finding that Plaintiff failed to prove her negligence claim by a preponderance of the evidence because the evidence did not establish that the Metro Police Department had actual or constructive notice of any dangerous condition with sufficient time to take corrective action. We affirm. |
Davidson | Court of Appeals | |
Clayton Ward v. Illinois Central Railroad Company
Appellant, former employee of Appellee railroad, appeals the trial court’s grant of Appellee’s motion for summary judgment on the ground of preclusion. Appellant filed this lawsuit under the Federal Employers’ Liability Act, seeking damages for injuries he allegedly suffered as a result of walking on ballast in Appellant’s railyard. Appellee moved for summary judgment on the ground that Appellant’s claim concerning ballast was precluded by the Federal Railroad Safety Act regulation 49 C.F.R. § 213.103. The trial court granted summary judgment, concluding that Appellant failed to meet his burden to negate Appellee’s proof that it complied with 49 C.F.R. § 213.103. We have determined that Appellant satisfied his burden of production to negate Appellee’s proof regarding whether the ballast rock at issue provided adequate drainage in compliance with 49 C.F.R. § 213.103, making summary judgment inappropriate. Reversed and remanded. |
Court of Appeals | ||
State of Tennessee v. Larry D. Rothwell
Appellant, Larry D. Rothwell, was convicted by a Rhea County jury of second degree murder and sentenced to twenty-one years in incarceration. After the denial of a motion for new trial, Appellant has presented the following issues for our review on appeal: (1) whether the trial court abused its discretion by excusing a juror; (2) whether the trial court abused its discretion by refusing to allow introduction of portions of a witness’s pretrial interview; (3) whether the trial court improperly excluded evidence about how the fight between Appellant and the victim started, determining that evidence from Betty Lewis was collateral; (4) whether the trial court improperly refused to enforce a subpoena for Betty Lewis on behalf of Appellant; (5) whether the trial court improperly denied Appellant the opportunity to impeach Brandy Smith; (6) whether the trial court improperly allowed hearsay testimony; (7) whether the trial court improperly excluded Randy Rothwell’s testimony about the description of a knife removed from the victim’s body; (8) whether the trial court improperly declared Randy Rothwell a hostile witness; (9) whether the trial court improperly excluded evidence of Brandy Smith’s prior felony conviction; (10) whether the trial court improperly denied the motion to suppress; (10) whether the evidence was sufficient to support the conviction; (11) whether cumulative errors of the trial court require reversal of the conviction; and (12) whether the sentence was excessive. After a review of the record, we determine that the evidence did not preponderate against the denial of the motion to suppress where the evidence supported a finding of exigent circumstances; the trial court did not err in excusing a juror; the trial court properly excluded impeachment of Brandy Smith by prior inconsistent statement where she admitted to an inconsistency in one prior statement and the other statement was not inconsistent; the trial court properly determined that the testimony of Betty Lewis was excluded by the collateral fact rule; the trial court properly admitted the statements of Randy Rothwell; the trial court properly excluded the testimony of Leo Andy about the knife on the victim’s person as hearsay; the trial court properly determined that Randy Rothwell was a hostile witness; the trial court did not abuse its discretion when it determined that the admission of Brandy Smith’s prior conviction was more prejudicial than probative; the evidence was sufficient to support the lesser included offense of second degree murder; and the trial court properly sentenced Appellant. Accordingly, the judgment of the trial court is affirmed. |
Rhea | Court of Criminal Appeals | |
State of Tennessee v. Ledarren S. Hawkins
The defendant was convicted in the Circuit Court for Madison County of first degree murder and tampering with physical evidence. On this appeal, the defendant seeks reversal of his first degree murder conviction on the ground that the trial court declined his request for a jury instruction on defense of a third person. He also seeks reversal of his evidence-tampering conviction on the ground that his abandonment of the murder weapon did not amount to tampering with physical evidence. The Court of Criminal Appeals upheld his convictions and sentences. State v. Hawkins, No.W2010-01687-CCA-R3-CD, 2012 WL 543048 (Tenn. Crim. App. Feb. 16, 2012). Based on this record, we have determined that the trial court properly denied the defendant’s request for an instruction on defense of a third person. However, we have also determined that the defendant did not tamper with physical evidence in violation of Tenn.Code Ann.§ 39-16-503(a)(1)(2010) by tossing the murder weapon over a short fence where it could be easily observed and recovered. Accordingly, we affirm the defendant’s conviction and sentence for first degree murder and reverse his conviction and sentence for tampering with physical evidence. |
Madison | Supreme Court | |
State of Tennessee v. Larry D. Rothwell - Concurring
I concur in results only. My primary disagreement with the majority’s opinion is the reliance therein upon State v. Gilley, 297 S.W.3d 739 (Tenn. Crim. App. 2008) and State v. Schiefelbein, 230 S.W.3d 88 (Tenn. Crim. App. 2007) for the proposition that “Appellate review of hearsay issues is guided by the de novo standard of review.” Judge Witt wrote both of these scholarly opinions, and quite candidly, I am unable to conclude that the conclusion reached therein on the issue in question is not the most appropriate legal conclusion. Nevertheless, our supreme court cited Gilley in a footnote in Pylant v. State, 263 S.W.3d 854, 871 n.26 (Tenn. 2008) and declined to adopt the de novo standard of review. After noting that Judge Witt “advocates for review of . . . rulings on whether the proffered testimony was hearsay under a de novo standard of review” in his dissent in this court in Pylant v. State, No. M2005-02721-CCA-R3-PC, 2007 WL 1890178, at *12 (Tenn. Crim. App. June 29, 2007) (Witt, J., dissenting) (emphasis added), the supreme court, in effect, declined to accept what Judge Witt advocated as the definitive standard of review and concluded the footnote by stating, |
Rhea | Court of Criminal Appeals | |
BAC Home Loans Servicing, LP, F/K/A Countrywide Home Loans Servicing, LP v. Kaiser C. Taylor and All Known and Unknown Heirs of Kaiser C. Taylor and Kathy K. Taylor
This case involves a foreclosure sale that occurred while an automatic stay was in effect pursuant to the mortgagor’s bankruptcy proceeding. The mortgagee petitioned the trial court to find the foreclosure void ab initio and to reform the real estate records by voiding the successor trustee’s deed and placing the parties in their original positions as to the deed of trust. The trial court denied the relief requested by the mortgagee. The mortgagee appeals. We hold that the foreclosure sale is invalid and of no effect because it is voidable, pursuant to United States Code § 362(a)(6) and (c) (Supp. 2012) and Tennessee law, and because there existed no equitable circumstances sufficient to constitute an exception to the operation of the stay. We reverse the denial of summary judgment and remand to the trial court for further proceedings. |
Hamilton | Court of Appeals | |
Lewis D. Chapman, Individually and as an Employee and Deputy Sheriff of Shelby County, Tennessee v. Shelby County Government, et al.
The trial court determined that Plaintiff had failed to demonstrate an injury and accordingly lacked standing in this declaratory judgment action. We reverse and remand for further proceedings. |
Shelby | Court of Appeals | |
Sidney Porterfield v. State of Tennessee
The petitioner, Sidney Porterfield, was convicted of first degree murder and sentenced to death. His conviction and sentence were affirmed on direct appeal. See State v. Porterfield, 746 S.W.2d 441 (Tenn. 1988). After his petition for post-conviction relief was denied, the petitioner filed a motion to reopen post-conviction proceedings, maintaining that he was intellectually disabled and thus ineligible to be sentenced to death. Following an evidentiary hearing, the post-conviction court denied the petitioner relief, and the petitioner appealed. We affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
State of Tennessee v. Herman McKinley
The defendant, Herman McKinley, was found guilty by a Shelby County jury of second degree murder, attempted first degree murder, two counts of aggravated assault with a deadly weapon, employing a firearm during the commission of a dangerous felony, and unlawful possession of a handgun as a convicted felony. Following a sentencing hearing, he was sentenced to an effective term of one hundred thirty-one years in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and the imposition of consecutive sentencing. Following review of the record, we affirm the convictions and sentences as imposed. |
Shelby | Court of Criminal Appeals | |
Tera Danielle Ward v. John Patrick Ward
In this divorce case, the father appeals the trial court’s designation of the mother as the primary residential parent of the parties’ daughter. The child was born after the parties separated; at the time, the father lived in New Jersey and the mother lived in Tennessee. Divorce proceedings were initiated in Tennessee when the child was six months old; both parents asked to be designated as the child’s primary residential parent. After a trial, the trial court declared the parties divorced and designated the mother as the child’s primary residential parent; the father was granted parenting time for one week per month. The father now appeals, challenging the trial court’s decision to declare the parties divorced and to designate the mother as the child’s primary residential parent. After a careful review of the evidence, we affirm the trial court’s decision to declare the parties divorced, and reverse the designation of the mother as the primary residential parent of the child. We vacate the parenting plan approved by the trial court and remand the cause for entry of an order and parenting plan designating the father as the child’s primary residential parent, with appropriate alternate parenting time for the mother. |
Montgomery | Court of Appeals | |
State of Tennessee v. Michael T. Shelby
In this State appeal, the Defendant, Michael T. Shelby, was indicted for promoting the manufacture of methamphetamine, possession of methamphetamine, and possession of drug paraphernalia. The Defendant filed a motion to suppress, claiming the search warrant lacked probable cause. After a suppression hearing, the trial court granted the Defendant’s motion to suppress, finding that the search warrant was legally defective, and suppressed the evidence seized pursuant to the warrant. The State appeals, contending that the trial court erred when it granted the Defendant’s motion to suppress because the informant provided sufficiently reliable information upon which the warrant could be properly issued. After a thorough review of the record and applicable authorities, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion. |
Montgomery | Court of Criminal Appeals | |
State of Tennessee v. Karen Jo Williams
Appellant, Karen Jo Williams, entered guilty pleas to forgery, two counts of theft of property valued at $500 or less, and violation of an order of protection. Pursuant to the plea agreement, the trial court imposed an effective four-year sentence to be served in community corrections and ordered the sentence to be served consecutively to a probationary sentence from Kentucky that she was serving at the time. Subsequently, the trial court held a revocation hearing, after which it revoked appellant’s community corrections sentence and ordered execution of her four-year sentence in the Tennessee Department of Correction. Appealing the trial court’s judgment, appellant raises the following issues: (1) whether a community corrections revocation warrant alleging violation of a direct order was valid when appellant’s Tennessee sentence had not yet begun; (2) whether an amended warrant alleging a new criminal conviction was invalid; and (3) whether the trial court abused its discretion in revoking her unserved community corrections sentence and ordering execution of her full sentence. Following our review, we affirm the judgment of the trial court. |
Sumner | Court of Criminal Appeals | |
Willie Beverly, Deacon of Antioch Baptist Church v. Farm Bureau Insurance and Tennessee Farmers Insurance Company
A general sessions judgment was appealed to circuit court. In the circuit court, the Plaintiff filed a motion to dismiss the appeal, claiming that there were errors in the Defendant’s notice of appeal and appeal bond that rendered the documents ineffective. The circuit court denied the motion, and the case was resolved on its merits. The Plaintiff appeals, arguing that the circuit court should have dismissed the appeal based on the alleged errors in the notice of appeal and appeal bond. We affirm. |
Haywood | Court of Appeals | |
Richard Randall v. Shelby County Unified School Board (inclusive of the former Memphis City Schools Board of Education), et al.
The trial court reversed the Board of Education’s decision to dismiss a City of Memphis school teacher. We reverse the trial court and reinstate the Board of Education’s dismissal of the teacher on the ground of unprofessional conduct. |
Shelby | Court of Appeals |