Issues Not Properly Raised And / Or Briefed on Appeal
Unless otherwise indicated, all indented material is copied directly from the court’s opinion.
Decisions of the Tennessee Supreme Court
State v. Bristol, No. M2019-00531-SC-R11-CD, p. 4 (Tenn. Oct. 7, 2022).
As explained below, an appellate court has limited discretionary authority to review unpreserved and unpresented issues. We thus review the Court of Criminal Appeals’ consideration of the jury-instruction issue for abuse of discretion. A court abuses its discretion when it “strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision.” State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019) (quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).
State of Tennessee v. Linville, No. W2019-02180-SC-R11-CD, p. 10 (Tenn. June 1, 2022).
“[I]ssues are properly raised on appeal to this Court when they have been raised and preserved at trial and, when appropriate, in the intermediate appellate courts and when they have been presented in the manner prescribed by [Rule 27 of the Tennessee Rules of Appellate Procedure].” Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (footnote omitted). Similarly, we have recognized that because our scope of review on appeal is typically limited to the issues raised in the application for permission to appeal, “[a] party who fails to adequately raise an issue in a Rule 11 application waives the issue.” TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn. 2019).
Editor’s Note: The Supreme Court went on to consider the waived issue based on the “plan error” doctrine. Page 10
State of Tennessee v. Reynolds, E2018-01732-SC-R11-CD (Tenn. Nov. 29, 2021).
Although the Court of Criminal Appeals identified the admission of this testimony [about the names of gang members unconnected with the case] as error, we conclude that the issue is not properly before this Court. See Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (stating that “issues are properly raised on appeal to this Court when they have been raised and preserved at trial and, when appropriate, in the intermediate appellate courts and when they have been presented in the manner prescribed by [Rule 27 of the Tennessee Rules of Appellate Procedure]” (footnote omitted)).
Decisions of the Tennessee Court of Criminal Appeals
State v. Johnson, No. E2021-01106-CCA-R3-CD, p. 9 (Tenn. Ct. Crim. App. May 18, 2023).
Where there is failure to prepare a sufficient brief in compliance with the Rules of Appellate Procedure, the issue is waived. State v. Lucy Killebrew, 760 S.W.2d 228, 236 (Tenn. Crim. App. 1988) (waived issue where Defendant had failed to adequately brief issues by making appropriate references to the record, cite authority in support of issues, and/or make appropriate arguments); see also State v. Jason Steven Molthan, No. M2021- 01108-CCA-R3-CD, 2022 WL 17245128, at *2 (Tenn. Crim. App. Nov. 28, 2022) no perm. app. filed (waived issues where Defendant had failed to provide an adequate appellate record and had not prepared a sufficient brief); State v. Sheila Marie Lott, No. M2008-02127-CCA-R3-CD, 2010 WL 565664, at *4 (Tenn. Crim. App. Feb 18, 2010) (“Appellant also makes a cursory statement that her sentences should have been run concurrently rather than consecutively. Appellant includes no argument or citations to authority to support the statement. [] Because Appellant has failed to cite any authority for this claim, it is waived.”).
State of Tennessee v. Coons, No. M2021-00202-CCA-R3-CD, p. 12 fn. 6 (Tenn. Ct. Crim. App. June 3, 2022).
Although the defendant contends the evidence was insufficient “to sustain the convictions in all of the counts of conviction,” the argument section of his brief contains no mention of his conviction for aggravated criminal trespass and no rationale as to why it should be reversed. Therefore, any claim that the evidence is insufficient to support the defendant’s aggravated criminal trespass conviction is waived. “Issues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7).
Byrd v. State of Tennessee, No. E2021-00562-CCA-R3-PC , p. 8 (Tenn. Ct. Crim. App. June 1, 2022).
The Petitioner makes only general arguments regarding these issues in three short paragraphs in his brief with no citations to the record. Generally, “[i]ssues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7).
