APPELLATE COURT OPINIONS

This is a termination of parental rights case regarding the parental rights of the mother, Brandy L. (“Mother”) to her minor children, Selena L. and Isabella H., ages five and two respectively when the termination action was filed (collectively, “the Children”). Mother voluntarily placed Selena L. in the custody of a relative in 2009, shortly after the child’s birth. On April 13, 2012, the Hamilton County Juvenile Court (“juvenile court”) placed the Children into the custody of the maternal great-grandmother, Vickie R. (“Petitioner”), upon Petitioner’s filing an action for custody. On August 25, 2014, Petitioner filed petitions in the Bradley County Circuit Court (“trial court”) seeking to terminate the parental rights of Mother and to adopt the Children. Following a bench trial, the court terminated Mother’s parental rights to the Children after determining by clear and convincing evidence that Mother had abandoned the Children by: (1) willfully failing to visit them, (2) willfully failing to financially support them, and (3) exhibiting a wanton disregard toward their welfare. The trial court further found by clear and convincing evidence that terminating Mother’s parental rights was in the best interest of the Children. Mother has appealed. We reverse the trial court’s finding that Mother abandoned the Children by willfully failing to support them during the determinative four-month period. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s parental rights to the Children.

The trial court terminated Father’s parental rights on grounds of substantial noncompliance with a permanency plan and persistent conditions. The trial court also found that termination was in the child’s best interest. Discerning no error, we affirm.

The petitioner, Deandre Blake, appeals the post-conviction court's denial of his petition for post-conviction relief in which he challenged his convictions for two counts of felony first degree murder and resulting life sentence. On appeal, the petitioner contends that he received ineffective assistance of counsel at trial. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Following a jury trial in 1992, the Defendant, David Cloar, was found not guilty by reason of insanity on two counts of first degree murder. The Defendant was then involuntarily committed to the Middle Tennessee Mental Health Institute pursuant to Tennessee Code Annotated section 33-7-303(c). The Defendant now appeals from the trial court’s order denying his discharge, following a ninety-day furlough to a residential group home, from involuntary commitment. The Defendant contends that it was not established by clear, unequivocal, and convincing evidence that he was ineligible for discharge under the applicable statute. Following our review, we reverse the judgment of the trial court and remand this case for the entry of an order discharging the Defendant pursuant to the discharge plan submitted by the Middle Tennessee Mental Health Institute.

The Defendant, Brian Lee Webb, was convicted by a Benton County jury of rape of a child (Count 1) and aggravated sexual battery (Count 2). He was sentenced to a concurrent term of forty years' confinement for the child rape conviction and twelve years' confinement for the aggravated sexual battery conviction, for an effective sentence of forty years in the Tennessee Department of Correction (TDOC). On appeal, the Defendant argues that the evidence is insufficient to sustain his convictions and that the trial court erred in not considering certain mitigating evidence in sentencing. Because neither the record nor the judgment reflects service of the aggravated sexual battery conviction at 100% as mandated by statute, we are compelled to remand Count 2 for entry of corrected judgment. In all other respects, we affirm the judgments of the trial court.

Following a jury trial, the Defendant, John Edward Dawson, was convicted of aggravated burglary, burglary, vandalism of property valued at $1,000 or more but less than $10,000, theft of property valued at $1,000 or more but less than $10,000, and possession of burglary tools. The trial court sentenced the Defendant, as a Range II multiple offender, to ten years for aggravated burglary; eight years for burglary; eight years for vandalism of property valued at $1,000 or more but less than $10,000; and eight years for theft of property valued at $1,000 or more but less than $10,000. The trial court also sentenced the Defendant to eleven months and twenty-nine days for possession of burglary tools. All the sentences were ordered to run concurrently for an effective ten years’ incarceration. On appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions and contends that his sentence is excessive. Discerning no error, the judgments of the trial court are affirmed.

At its scheduled meeting, the City of Memphis Pension Board denied by voice vote a Memphis police officer's request for benefits. At some point in time, which is unclear from the record, the Board approved minutes from its meeting, which reflected the denial of the police officer's request. The police officer filed a petition for writ of certiorari, seeking judicial review of the Board's decision. The police officer supported his petition with an oath but failed to include a recitation indicating that the petition was his first application for the writ. The City of Memphis moved to dismiss the petition for lack of subject matter jurisdiction on the basis of the missing recitation. The trial court granted the motion. On appeal, the police officer argues that the missing recitation did not deprive the trial court of subject matter jurisdiction. In addition to the missing recitation, the City argues that the trial court also lacked subject matter jurisdiction because the petition was not filed within sixty days from the Board‟s decision on the request for benefits. We vacate the judgment of dismissal and remand for further proceedings.

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.  The Maury County Circuit Court granted the motion, and the State now appeals.  Upon review of the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

This appeal arises from an alleged assault of a student by a school employee.  April Elaster (“Mother”) filed a lawsuit against the Hamilton County Department of Education, Dean of Students Edward Rowe (“Rowe”), and part-time school administrator Carol Thomas (“Thomas”) (collectively, “Defendants”) in the Circuit Court for Hamilton County (“the Trial Court”) on behalf of her minor son, Theodore Elaster, Jr. (“the Child”).  Mother alleged that Rowe assaulted the Child, and her various counts arose from that alleged assault.  After a trial, the Trial Court entered judgment in favor of Defendants, finding that any collision between Rowe and the Child was unintentional.  Mother appeals to this Court.  We find that the evidence does not preponderate against the Trial Court’s finding that the alleged assault did not happen, and this finding serves to defeat all of Mother’s claims.  We affirm the judgment of the Trial Court.

The mother and stepfather of two children filed a petition to terminate the parental rights of the children’s father. Father was incarcerated when the petition was filed and had not visited or supported the children during the four months preceding his incarceration. Father was released in February 2015 after serving more than three years in prison on a theft of property charge and admitted at trial that the oldest child “might remember” him but that the youngest child would not. Nevertheless, Father testified that he had been sober for more than four years, had started his own business, had paid child support since his release, and wanted to restore his relationship with his children. While the petition was pending, Mother, who also had a history of drug and alcohol abuse, was arrested for driving under the influence. After a two-day trial, the court found that two grounds for termination had been proved; however, the court found that Mother and Stepfather had failed to prove by clear and convincing evidence that termination of Father’s parental rights was in the best interest of the children. The trial court’s best-interest findings were based in part on findings that Father had “turned his life around” and was addressing his addiction while Mother, who admitted to having a “very serious, addiction to alcohol,” was not realistically dealing with her addiction. Mother and Stepfather appeal contending the trial court erred by considering Mother’s DUI and addiction when it was Father who was the subject of the petition. They also contend the evidence demonstrated that it was in the best interest of the children to terminate Father’s parental rights. We find no error with the trial court’s consideration of Mother’s addiction in its best-interest analysis because Tenn. Code Ann. § 36 1 113(i) expressly authorizes consideration of factors other than the enumerated factors when determining the best interest of a child. Furthermore, the evidence does not preponderate against the trial court’s finding that Mother and Stepfather failed to prove by clear and convincing evidence that it is in the children’s best interest to terminate Father’s parental rights. Therefore, we affirm.

This case involves an effort to terminate parental rights. The Department of Children’s Services filed a petition to terminate the parental rights of E.D. (Mother) with respect to her child, S.D.D. (the Child). The trial court found clear and convincing evidence of four grounds supporting termination. The court also found, by the same quantum of proof, that termination is in the best interest of the Child. Mother appeals. We affirm.

This appeal arises from post-divorce efforts to modify child support. The father agreed, in the original parenting plan, to pay the tuition for a program for children with autism in lieu of child support. Subsequently, the parties agreed to enroll their child in a private school for children with learning challenges, and the father voluntarily paid the tuition. Several years later, the mother filed a petition for modification of child support after the father refused to continue paying the tuition. After a hearing, the trial court found a significant variance between the child support obligation in the agreed parenting plan and the presumed amount of child support under the Tennessee Child Support Guidelines. The court calculated a new child support amount after finding that the father was voluntarily underemployed and allocating additional income to him based on his earning potential. The court also ordered an upward deviation for extraordinary educational expenses and awarded the mother a portion of her attorney’s fees. Upon review of the record, the evidence does not preponderate against the trial court’s factual findings, and we find no abuse of discretion in the trial court’s decision. Therefore, we affirm and remand this case for a determination of the amount of the mother’s reasonable attorney’s fees on appeal.

Petitioner, Josue Segura, appeals the denial of his petition for post-conviction relief, arguing that the trial court erred in finding that he received effective assistance of counsel. Following a thorough review of the record, we affirm the judgment of the post-conviction court.

DCS filed a petition to terminate the parental rights of T.E.W. (Father) to his child, A.E.T. (the Child), on two grounds. Following a bench trial, the court entered a termination order, finding, by clear and convincing evidence, that Father had been sentenced by a federal court to a term of imprisonment of more than ten years, at a time when the Child was not yet eight years of age. The court also found that termination was in the Child’s best interest. DCS had sought to terminate Father’s parental rights based on abandonment by wanton disregard, but the trial court initially declined to do so. After the trial, DCS realized that the parties had made a mutual mistake, the result of which was to render invalid the sole ground for termination found by the trial court. At the request of DCS, the trial court re-opened the proof. In light of additional evidence, the court entered a new order that terminated Father’s parental rights, this time finding DCS had established the ground of wanton disregard by clear and convincing evidence. The court adopted its earlier holding regarding the Child’s best interest. Father appeals. We affirm the judgment of the trial court as modified.  

A Hamilton County jury found the Defendant, Monica Dawn Hammers, guilty of attempted aggravated child abuse. Pursuant to an agreement between the parties, the trial court sentenced the Defendant as a Range I offender to serve a nine year sentence through supervised probation. On appeal, the Defendant asserts that: (1) the evidence presented at trial is insufficient to support her conviction; (2) the trial court erred in allowing the State to present evidence of the Defendant's prior bad acts; and (3) the trial court failed to instruct the jury on lesser-included offenses. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

In 2012, the Petitioner, Brian O’Neal Elliott, pleaded guilty to second degree murder and was sentenced to twenty-five years of incarceration to be served at 100%.  In 2013, the Petitioner filed a pro sepetition for post-conviction relief.  The post-conviction court appointed counsel, who filed an amended petition for post-conviction relief alleging that the Petitioner had received the ineffective assistance of counsel.  The post-conviction court held a hearing on the petition and denied relief.  We affirm the post-conviction court’s judgment.

A Williamson County grand jury indicted the Defendant, Bradley Darrin Williams, for one count of driving under the influence (“DUI”) and one count of DUI per se. The Defendant filed a pretrial motion to suppress the evidence obtained as a result of his traffic stop. The trial court denied the Defendant’s motion, and the Defendant pleaded guilty to the two counts of DUI. The trial court merged the convictions and sentenced the Defendant to eleven months and twenty-nine days, to be served on probation after the service of seven days in confinement. The Defendant reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the trial court erred when it denied his motion to suppress because the officer did not have reasonable suspicion justifying the stop.  After review, we conclude that the traffic stop was lawful and thus, we affirm the trial court’s judgment.

This is a premises liability action in which the plaintiffs, a husband and wife, filed suit against the defendant hospital for personal injuries and other damages resulting from wife’s slip and fall. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiffs failed to demonstrate defendant’s actual or constructive knowledge of the dangerous condition by failing to proffer material evidence establishing the cause, source, or duration of the dangerous condition. The plaintiffs appeal. We affirm the decision of the trial court.

In 1996, a Madison County jury convicted the Petitioner, Danny Ray Lacy, of first degree felony murder during the perpetration of aggravated child abuse, and the trial court sentenced him to life in prison without the possibility of parole. The Petitioner appealed, and this Court affirmed the Petitioner's conviction and sentence. State v. Lacy, 983 S.W.2d 686 (Tenn. Crim. App. 1997). The Petitioner filed an unsuccessful petition for habeas corpus relief. Danny Ray Lacy v. Cherry Lindamon, Warden, No. M2009-00072-CCA-R3-CO, 2009 WL 3029619, at *1 (Tenn. Crim. App., at Nashville, Sept. 22, 2009), no Tenn. R. App. P. 11 application filed. The Petitioner then filed this petition for writ of error coram nobis, alleging that the Jackson Police Department possessed exculpatory evidence. The coram nobis court dismissed the petition, and, after review, we affirm that judgment.

This appeal concerns certain declarations of covenants and restrictions (i.e., a buffer easement) on a piece of property. The purchasers of the property filed a motion for summary judgment arguing that the foreclosure by the bank on its superior mortgage extinguished by operation of law any covenants and restrictions recorded after the bank’s deed of trust was recorded. The trial court granted summary judgment in favor of the purchasers. The holders of the buffer easement containing the covenants and restrictions appeal. We affirm.

In 2008, a Warren County jury convicted the Petitioner, Raygan L. Presley, of three counts of aggravated sexual battery, and the trial court sentenced the Petitioner to an effective sentence of twenty-two years, to be served at 100%. Upon review, this Court ordered that all the sentences run concurrently, for a total effective sentence of eleven years, to be served at 100%. See State v. Raygan L. Presley, No. M2007-02487-CCA-R3-CD, 2008 WL 3843849, at *1 (Tenn. Crim. App., at Nashville, Aug. 18, 2008), no Tenn. R. App. P. 11 application filed. In December 2015, the Petitioner filed a petition for habeas corpus relief alleging that his sentence had expired. He asserted that, in addition to the pretrial jail credits, he had earned 140 days of behavior credits and 492 days of program credits, meaning that his sentence expired on November 1, 2015. The habeas corpus court summarily dismissed the petition, finding that the face of the judgments did not show that his sentence had expired and that he must pursue relief pursuant to the Administrative Procedures Act. On appeal, the Petitioner contends that the trial court erred when it dismissed his petition. After review, we affirm the habeas corpus court’s judgment.

In conjunction with the entry of a nolo contendere plea to driving under the influence (“DUI”), Defendant, Freddie Ali Bell, reserved a certified question for appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A) in which he asked this Court to determine whether the record supports the finding of probable cause or reasonable suspicion to legally permit a seizure of Defendant and his vehicle.  After a review, we determine that the evidence supports a finding of probable cause for the stop.  Consequently, the trial court’s denial of the motion to suppress is affirmed.

A Sullivan County Criminal Court Jury convicted the appellant, Kevin Wells, of possession of a Schedule II controlled substance with intent to sell or deliver, a Class C felony; two counts of possession of a Schedule III controlled substance with intent to sell or deliver, a Class D felony; and driving on a revoked license, a Class B misdemeanor, and he received an effective thirteen-year sentence as a Range III, persistent offender. On appeal, the appellant contends that the trial court erred by denying his motion to suppress evidence, by allowing the State to introduce text messages from a codefendant's cellular telephone into evidence, and by admitting his statement into evidence. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgments of the trial court.

In this divorce action, the trial court fashioned a division of the parties’ marital property without determining values for several items of personal property and amounts of certain debt and without reference to the statutory factors. The trial court also awarded the wife alimony in futuro in the amount of $1,500 per month and attorney’s fees in the amount of $5,000. The husband has appealed. Due to the lack of factual findings regarding the basis for the trial court’s marital property distribution, we vacate that portion of the judgment and remand the issue to the trial court for entry of appropriate findings of fact and conclusions of law. Because we have vacated the trial court’s distribution of marital property, we must also vacate and remand the issues of alimony and attorney’s fees for reconsideration by the trial court once an equitable distribution of marital property has been fashioned. The wife’s claim seeking attorney’s fees incurred on appeal is denied.

The petitioner, Edward Bruce Coleman, appeals the denial of post-conviction relief from his 2010 Davidson County Criminal Court jury conviction of aggravated assault, for which he received a sentence of 12 years. In this appeal, the petitioner contends that the order denying post-conviction relief was inadequate and that he was denied the effective assistance of counsel. Discerning no error, we affirm.