APPELLATE COURT OPINIONS

Following a jury trial, the Defendant, Robert Grisham, was convicted of observation without consent, unlawful photography, and especially aggravated sexual exploitation of a minor. In this appeal of right, the Defendant challenges the following: (1) the trial court’s denial of his motion to suppress the deleted files retrieved from his cell phone using highly-sophisticated equipment; (2) the sufficiency of the evidence supporting his conviction for especially aggravated sexual exploitation of a minor, arguing that there was insufficient proof of “sexual activity” by “lascivious exhibition” on the video; and (3) the trial court’s enhancement of his sentencing term for especially aggravated sexual exploitation of a minor to nine years by utilizing the abuse of private trust enhancement factor. In light of our supreme court’s recent decision in State v. Whited, 506 S.W.3d 416 (Tenn. 2016), we conclude that the proof was insufficient to support the element of sexual activity and are, therefore, required to reverse and vacate the Defendant’s conviction for especially aggravated sexual exploitation of a minor. However, because the proof is sufficient to support the lesser-included offense of attempted especially aggravated sexual exploitation of a minor, which was charged to the jury, we remand this matter to the trial court for entry of an amended judgment reflecting a conviction for attempt and for resentencing on this modified conviction. The Defendant’s convictions for unlawful photography and observation without consent are affirmed. Accordingly, the trial court’s judgments are affirmed in part and reversed in part, and the case is remanded for a new sentencing hearing.

The Defendant, Bobby E. Lee, appeals his sentence of confinement after being convicted of two counts of delivery of Oxycodone, a Schedule II controlled substance.  The trial court sentenced the Defendant to eleven months, twenty-nine days at seventy-five percent release eligibility.  The Defendant argues that the trial court abused its discretion in imposing the maximum sentence and a term of incarceration.  After thorough review of the record and applicable law, we affirm the judgments of the trial court.

The Defendants, Octavius Flynn and Derrick Benson, appeal their convictions for second degree murder and their respective sentences of twenty-five and twenty-four years. On appeal, the Defendants argue, either individually or collectively, that (1) the trial court erred in denying their motions to sever; (2) a witness’s identification of Mr. Flynn in a photographic array was unreliable and should have been suppressed; (3) the evidence was insufficient to support the convictions; (4) the trial court erred in denying Mr. Flynn’s motion to dismiss due to spoliation of evidence; (5) the jury failed to follow the trial court’s instructions and improperly compromised on a verdict of second degree murder; and (6) the sentences are excessive. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

The Petitioner, Justin Parliment, was convicted of possession of a controlled substance in a penal institution and sentenced to eight years to be served consecutively to a previously-imposed twenty-three-year sentence for second degree murder. The Petitioner filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel, and the post-conviction court denied the petition. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Juan Cerano, was convicted of rape of a child and aggravated sexual battery. The trial court merged the aggravated sexual battery conviction into the rape of a child conviction and sentenced the Defendant to thirty years in prison. On appeal, he contends that the trial court erred by denying his motion to produce records from the Department of Children’s Services regarding prior allegations of abuse after an in camera inspection. After reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

The Defendant, Christopher Johnson, was convicted by a Hardin County Jury of possession of mushrooms with intent to manufacture, deliver, or sell, possession of mushrooms, possession of drug paraphernalia, and unlawful possession of a weapon by a convicted felon. As a Range II, multiple offender, he received an effective sentence of fifteen years in the Tennessee Department of Correction. On appeal, the Defendant claims: (1) the evidence is insufficient to sustain his conviction of unlawful possession of a weapon by a convicted felon; (2) the trial court improperly denied his motion to suppress; (3) the trial court improperly admitted a redacted audio recording of the Defendant’s interview with police at trial; and (4) the State committed prosecutorial misconduct by failing to provide discoverable evidence and improperly quoting a witness during closing argument. Upon review, we affirm the judgments of the trial court but remand for entry of a corrected judgment form as to count four reflecting that the Defendant was found not guilty of possession of marijuana.

Appellant brought a pro se action against several medical providers for injuries sustained when she was allegedly beaten during medical procedures. The trial court dismissed the complaint, under Tennessee Rule of Civil Procedure 12.02, for failure to comply with the procedural requirements of the Tennessee Health Care Liability Act (THCLA). On appeal, Appellant contends that she was not obligated to comply with the THCLA’s procedural requirements because her claim was based in tort and did not assert a health care liability claim. After reviewing the complaint, we conclude that it asserts several distinct claims, some of which are health care liability claims and some are not. We, therefore, affirm the trial court’s dismissal of the health care liability claims, but reverse the trial court’s grant of Appellees’ motions to dismiss the non-health care liability claims.

A Davidson County jury convicted the Defendant, Dequan Hasani Bertrand, of aggravated robbery, aggravated burglary, and employment of a firearm during the commission of a dangerous felony.  The jury acquitted the Defendant of one count of aggravated rape and was unable to reach a verdict as to two other counts of aggravated rape.  The trial court sentenced the Defendant to a total effective sentence of twenty-four years.  On appeal, the Defendant contends that: (1) the trial court erred when it admitted the victim’s identification of him; (2) the evidence is insufficient to sustain his convictions; and (3) the trial court erred when it sentenced him to the maximum sentences within his range and ordered his sentences to run consecutively.  After review, we affirm the trial court’s judgments.

Henry Epps (“the Petitioner”) entered a best interest plea to six counts of sexual exploitation of a minor; the remaining nine counts of sexual exploitation of a minor were dismissed per the negotiated plea agreement.  The Petitioner received an effective sentence of eight years with release eligibility after service of 100% of the sentence in the Department of Correction.  The Petitioner filed an original and an amended petition for post-conviction relief.  After an evidentiary hearing, the post-conviction court denied relief.  On appeal, the Petitioner argues that trial counsel’s performance was deficient in failing to subpoena the Petitioner’s computer forensic expert to testify at trial and in failing to inform the Petitioner until the Friday before his Monday trial that the expert had not been subpoenaed.  Petitioner claims that absent trial counsel’s deficient performance, the Petitioner would have proceeded to trial, and therefore the Petitioner’s best interest plea was entered involuntarily.  After a thorough review of the record and applicable case law, we reverse and remand for a new post-conviction hearing.

The Defendant, Michael Dewayne Hall, was convicted by a Blount County Jury of sale or delivery of cocaine under 0.5 grams in the drug-free zone of a public park, a Class C felony, and sale or delivery of cocaine over 0.5 grams in the drug-free zone of a public park, a Class B felony. As a career offender, he received an effective sentence of thirty years in the Tennessee Department of Correction. On appeal, the Defendant claims: (1) the trial court improperly admitted a map into evidence at trial; (2) the trial court improperly denied his motion to dismiss the indictment; (3) the evidence is insufficient to sustain his convictions; and (4) the trial court improperly acted as thirteenth juror to approve the jury’s verdict. We conclude that the trial court properly admitted the map, denied the motion to dismiss, and acted as thirteenth juror, and that the evidence is sufficient to sustain the Defendant’s convictions. However, after a plain error review, the duplicitous nature of the Defendant’s convictions for “sale or delivery” of cocaine constitutes reversible error and violates the Defendant’s fundamental and substantial right to a unanimous jury verdict. Accordingly, we reverse, vacate, and dismiss the Defendant’s convictions.

Plaintiff filed this pro se action against a hospital and members of its medical staff for injuries sustained when she was allegedly beaten and misdiagnosed while receiving medical treatment. The trial court dismissed plaintiff’s complaint based on her failure to comply with procedural requirements of the Tennessee Health Care Liability Act (“THCLA”). On appeal, plaintiff contends that she was not required to comply with the THCLA’s procedural requirements because her complaint did not assert health care liability claims. Having reviewed the complaint, we conclude that plaintiff’s claims related to the alleged misdiagnosis are health care liability claims, while her claims related to the alleged beatings are not. We affirm dismissal of plaintiff’s health care liability claims but reverse dismissal of her non-health care liability claims.

Appellant purchased a vehicle, owned by Appellee, from an auto auction company. After the purchase, Appellant discovered that the vehicle’s engine was defective, a fact that was not disclosed prior to sale. Appellant sought rescission of the purchase against Appellee but did not name the auto auction company as a defendant. Because the rescission and warranty of merchantability statutes, Tenn. Code Ann. §§ 47-2-608 and 47-2-314 require privity of contract between the buyer and the seller, and because the automobile auction statute, Tenn. Code Ann. § 62-19-128 clearly identifies the auction company as the seller of the vehicle, we conclude that Appellant did not have a cause of action for rescission against Appellee. Affirmed and remanded.

This is a termination of parental rights case. Father/Appellant appeals the termination of his parental rights to the minor child on the grounds of: (1) abandonment by willful failure to provide a suitable home and willful failure to support; (2) substantial noncompliance with the requirements of the permanency plan; and (3) persistence of the conditions that led to the child’s removal from Father’s home. Father also appeals the trial court’s finding that termination of his parental rights is in the child’s best interest. Because Appellee has failed to meet its burden to prove, by clear and convincing evidence, any of the grounds for termination of Father’s parental, we reverse and remand.

The first referral in this matter occurred on October 31, 2014. It involved “drug exposure of [Damien and his older sibling].” On December 15, 2014, there was a second referral to DCS, again for “drug exposure.” Methadone and methamphetamine were involved in the children’s care, or, more aptly, their non-care.

This is an appeal by the appellant, Amanda M.-B., from an order terminating her parental rights to her minor child. The order terminating the appellant's parental rights was entered on December 12, 2016. The Notice of Appeal was not filed until February 13, 2017, more than thirty (30) days from the date of entry of the final order. The Attorney General, on behalf of the appellee, Tennessee Department of Children's Services, has filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the record confirms that the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

The Defendant, Jacqueline Allen, was found guilty by a Humphreys County Circuit Court jury of assault, a Class A misdemeanor, and possession of a firearm by a convicted felon, a Class E felony. See T.C.A. §§ 39-13-101 (2010) (amended 2013), 39-17-1307 (2010) (amended 2012, 2014). The trial court sentenced the Defendant as Range I, standard offender to an effective two years’ probation. On appeal, the Defendant contends that the trial court erred by failing to inquire about a violation of the sequestration rule pursuant to Tennessee Rule of Evidence 615. We conclude that the appeal should be dismissed because the Defendant’s motion for a new trial was untimely.

This interlocutory appeal concerns whether the circuit court may sever a termination of parental rights proceeding from an adoption proceeding, which were filed together in the circuit court, and transfer only the termination of parental rights proceeding to the juvenile court in another county. Reversed and remanded.

In this action regarding injury allegedly caused by an emergency medical technician in the course of rendering medical aid, the trial court determined that the plaintiff’s claims were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the claims with prejudice based on the plaintiff’s failure to file a certificate of good faith pursuant to Tennessee Code Annotated § 29-26-122. The plaintiff has appealed, conceding that his claims sounded in health care liability but asserting that they should not have been dismissed with prejudice because a certificate of good faith was not required. Following our review of the complaint, we conclude that the plaintiff’s claims were subject to the common knowledge exception such that a certificate of good faith was not required pursuant to Tennessee Code Annotated § 29-26-122. We therefore reverse the trial court’s dismissal with prejudice and remand this matter to the trial court for entry of an order dismissing the plaintiff’s claims without prejudice based upon his failure to provide pre-suit notice.

The maternal grandmother of three children filed a petition to terminate the parental rights of the father of each child on various grounds and to allow the grandmother to adopt the children; the children’s mother joined in the petition for the purpose of consenting to the termination of her parental rights and to the adoption. Two of the fathers were incarcerated at the time of the proceeding and the father of the third child was unknown. The trial court terminated the rights of the father of one child on the grounds of abandonment by engaging in conduct prior to his incarceration that exhibited a wanton disregard for the welfare of his child and on the ground that the father had been convicted of an offense and was under a sentence of more than ten years; the court terminated the rights of the father of another child on the grounds of abandonment by failure to support and visit his child within the four months preceding his incarceration and by engaging in conduct prior to his incarceration which exhibited a wanton disregard for the welfare of his child. The fathers of these children appeal. We reverse the judgment terminating the parental rights of one father on the ground of abandonment by failure to support and the judgment terminating the rights of the other father on the ground of abandonment by engaging in conduct evidencing a wanton disregard for his child; in all other respects, the judgments terminating the parental rights of the fathers are affirmed.

The defendant, Bobby Joe Campbell, appeals his Sullivan County Criminal Court jury conviction of second offense driving under the influence (“DUI”), arguing that the trial court committed plain error by failing to declare a mistrial following certain comments from a member of the jury, that the evidence was insufficient to support his conviction, and that the sentence is excessive. We affirm the judgment of the trial court but remand the case for the entry of a corrected judgment that reflects the 180-day period of confinement ordered by the trial court.

The Appellant, David Scott Hall, was convicted in the Davidson County Criminal Court of attempted especially aggravated sexual exploitation of a minor, a Class C felony, and sentenced to four years to be served as one year in confinement and the remainder on supervised probation.  On appeal, the Appellant contends that the evidence is insufficient to support the conviction, that the trial court erred by allowing an expert witness to give irrelevant and highly prejudicial testimony, that he is entitled to coram nobis relief, that his right to a speedy trial was violated, that the trial court erred by allowing the State to introduce evidence without showing a proper chain of custody, that the trial court erred by allowing the State to play only a portion of a controlled telephone call to the Appellant, that the trial court erred by allowing the victim to testify about habit, that the trial court erred by allowing the State to introduce into evidence a letter supposedly written by the Appellant, and that the trial court erred by allowing the State to make improper closing arguments.  Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence is sufficient to support the conviction, that the trial court erred by allowing a witnesses to give irrelevant testimony but that the error was harmless, that the Appellant is not entitled to coram nobis relief, and that his right to a speedy trial was not violated.  Finding no plain error as to the remaining issues, we affirm the judgment of the trial court.

The Appellee, Thomas Braden, was indicted for possession of cocaine, possession of marijuana, and possession of Alprazolam, all misdemeanors.  He filed a motion to suppress the evidence, arguing that the affidavit in support of the search warrant for the home in which the drugs were found was defective because it failed to establish ongoing criminal activity at the residence, and the Maury County Circuit Court granted the motion.  The State appealed to this court, and we concluded that the trial court properly granted the motion to suppress.   The Tennessee Supreme Court granted the State’s application for permission to appeal and remanded the case to this court for reconsideration in light of the court’s recent opinion in State v. Jerry Lewis Tuttle, ___ S.W.3d ___, M2014-00566-CCA-R3-CD, 2015 WL 5812945 (Tenn. Apr. 5, 2017), which overruled State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989), and adopted a totality-of-the-circumstances analysis for determining whether an affidavit establishes probable cause for issuance of a search warrant.  Upon reconsideration, we again conclude that the trial court properly granted the motion to suppress.

A billboard company and the owners of the property upon which two billboards sit (“the defendants”) appeal the decision of the trial court holding that the board of zoning appeals erred in issuing building permits to the defendants to allow them to replace static display billboards with digital display billboards. Because we agree with the trial court’s conclusion that the ordinance at issue is a lighting regulation, not a zoning regulation, and that Tenn. Code Ann. § 13-7-208 therefore does not apply, we affirm the trial court’s decision.

This is an employment termination case involving a civil service employee. The petitioner was employed as a law enforcement officer with the Anderson County Sheriff’s Department (“the Department”) when the Department received notice from the Tennessee Department of Children’s Services (“DCS”) that the petitioner had been “indicated” as a perpetrator of child abuse in a DCS investigation pending in Roane County. The petitioner was placed on voluntary administrative leave. Upon subsequent notification that the DCS indication had been upheld through administrative review, the Department terminated the petitioner’s employment in November 2009. The petitioner appealed the termination to the Civil Service Board of the Anderson County Sheriff’s Department (“the Board”). While the appeal to the Board was pending, the petitioner filed a petition in the Roane County Chancery Court, seeking judicial review of DCS’s administrative decision. Upon review, the Roane County Chancery Court entered a judgment on August 3, 2012, reversing the classification and directing DCS to change the classification from “indicated” to “unfounded.” Through his counsel, the petitioner contacted Anderson County Sheriff Paul White to request reinstatement of his employment, but Sheriff White denied the request. Following a hearing conducted on August 6, 2013, the Board affirmed the Department’s termination decision and denied the petitioner’s motion for reinstatement filed during the hearing. The petitioner filed a petition for certiorari and review of the Board’s decision with the Anderson County Chancery Court (“trial court”) on September 4, 2013, naming the Board and Sheriff White as respondents (collectively, “Respondents”). The petitioner then filed a motion for partial summary judgment, averring that he had not been provided constitutionally sufficient notice of misconduct justifying termination. Following a hearing, the trial court, with Chancellor William E. Lantrip presiding, granted partial summary judgment in favor of the petitioner in an order entered February 27, 2014. The Respondents filed a “motion to revise order,” pursuant to Tennessee Rules of Civil Procedure 54 and 59. Following a hearing, the trial court, with Chancellor M. Nicole Cantrell now presiding, vacated the prior order granting partial summary judgment and affirmed the Board's decision. The petitioner has appealed to this Court. We affirm the portion of the trial court’s judgment affirming the Board’s decision to uphold the initial termination. However, having determined that the Board’s decision to uphold the denial of reinstatement was not supported by substantial and material evidence and yielded an arbitrary and capricious result, we reverse the trial court’s affirmance of the Board’s decision to uphold Sheriff White’s denial of the employee’s September 2012 request and the Board’s denial of the petitioner’s motion for reinstatement. We remand for entry of an order to reinstate the petitioner to his employment and a determination of back pay and other damages to be calculated from the point of his September 2012 request for reinstatement.

In this divorce action, the chancery court named Father the primary residential parent of the parties’ child. During the pendency of this appeal, Mother filed a dependency and neglect petition in juvenile court, and the juvenile court found the child dependent and neglected and awarded custody to Mother. We, therefore, remand this case to the chancery court to reconsider its decision in light of the juvenile court’s order.