APPELLATE COURT OPINIONS

The dispositive issue in this appeal is whether the election of offenses doctrine, articulated in Burlison v. State, 501 S.W.2d 801 (Tenn. 1973), and reaffirmed in State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), requires the prosecution to identify a single incident of sexual battery in cases, such as this one, where the child victim testifies to repeated incidents of sexual contact occurring over a substantial period of time but does not furnish any specific details, dates, or distinguishing characteristics as to individual incidents of sexual battery. We hold, as have courts in other jurisdictions, that where a prosecution is based on such nonspecific or “generic” evidence, requiring the prosecution to elect a single specific incident is not possible. However, to prevent infringement upon the defendant’s right to a unanimous verdict, the trial court must give a modified unanimity instruction which informs the jury that it must unanimously agree the defendant committed all the acts described by the victim in order to convict the defendant. Although the trial court did not have the benefit of this decision and therefore did not provide the modified unanimity instruction to the jury in this case, we conclude, based on the record in this appeal, that the omission of this instruction was harmless beyond a reasonable doubt. Accordingly, we reverse the Court of Criminal Appeals’ judgment vacating the defendant’s convictions of sexual battery by an authority figure and reinstate the trial court’s judgment approving the jury’s verdict.

I respectfully dissent from the majority view that the evidence supports a verdict of first degree premeditated murder.

The defendant, Chuncy Lesolue Hollis, whose original first degree premeditated murder conviction was reversed by this court due to an error in jury instructions, was again convicted by a Gibson County jury in a second trial of first degree premeditated murder and sentenced to life imprisonment. On appeal, he argues that the evidence is insufficient to sustain his conviction; that the trial court erred by issuing a jury instruction on flight and by not instructing the jury on cause of death, by allowing prior statements of witnesses to be introduced as substantive evidence, by allowing photographic lineups into evidence and by summarily dismissing his motion for judgment of acquittal and/or a new trial without holding a hearing; that the State committed prosecutorial misconduct by the manner in which the prosecutor questioned witnesses and by the improper comments he made in opening statement and closing argument; and that the cumulative effect of various trial errors deprived the defendant of his constitutional right to a fair trial. Following our review, we affirm the judgment of the trial court.

The Defendant, Clifford Eric Marsh, pleaded guilty to fourth offense driving on a revoked license, a Class A misdemeanor.  See T.C.A. § 55-50-504 (2012).  The trial court sentenced the Defendant to eleven months, twenty-nine days’ confinement at 75% service.  On appeal, the Defendant contends that the trial court erred by denying his request for alternative sentencing.

Following a jury trial, the Defendant, John Burley Alberts, was convicted of four counts of rape of a child, see Tennessee Code Annotated section 39-13-522, and received an effective sentence of one hundred years to be served at one hundred percent.  On appeal, the Defendant contends (1) that the trial court erred in denying the Defendant’s motion to suppress evidence obtained from a warrantless search of the Defendant’s car, and (2) that evidence obtained from a laptop computer recovered from his car should have been suppressed because officers did not acquire a search warrant prior to performing a forensic analysis of the computer.  Because we conclude that the search was valid under the automobile exception to the warrant requirement and that the Defendant has waived review of the second issue, the judgments of the trial court are affirmed.

The defendant, Chalmers G. Brown, appeals the trial court’s order granting his motion to correct an illegal sentence and entering corrected judgments, arguing that his convictions should have been vacated not merely corrected. After review, we reverse the trial court’s correction of the judgments against the defendant and reinstate the original judgments.

This is a termination of parental rights case. The child at issue in this case was placed in foster care at age two. When the child was ten years old, the child‘s foster parents filed a petition in Dyer County Chancery Court seeking to terminate the parental rights of the child‘s parents and to adopt the child. The trial court entered an order terminating the parental rights of the child‘s mother and father and granting the foster parents‘ petition to adopt the child. The mother has appealed the termination of her parental rights on the ground of abandonment by willful failure to visit in the four months prior to the filing of the petition to terminate her parental rights. The mother also appeals the trial court‘s finding that termination of her parental rights is in the child‘s best interest. We affirm the judgment of the trial court.

This appeal involves a lawsuit filed by an insured against his insurer due to the insurer's failure to pay a claim for a theft loss. The trial court granted summary judgment to the insurer, finding no coverage under the policy. We affirm.

A hierarchical church filed a complaint against one of its local churches, seeking an order establishing the hierarchical church's control over the local church's real and personal property. The trial court dismissed the complaint on the basis of the doctrine of ecclesiastical abstention. Discerning no error, we affirm.

Following a jury trial, the Defendant, Robert Spencer, was convicted of one count of possession with intent to sell twenty-six grams or more of a substance containing cocaine and one count of possession with intent to deliver twenty-six grams or more of a substance containing cocaine, both Class B felonies. See Tenn. Code Ann. § 39-17-417(a)(4), (c)(1), (i)(5). The trial court imposed a total effective sentence of fourteen years. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions; (2) that the trial court erred by allowing an investigator to testify about statements made by a “cooperating source”; and (3) that the trial court erred by failing to merge his convictions. Following our review, we affirm the Defendant's convictions. However, we merge the Defendant's convictions and remand the case to the trial court for entry of corrected judgment forms reflecting said merger.

ARNOLD B. GOLDIN, J., Dissenting.
In light of the facts that are presented by the pleadings in this case, I must respectfully dissent from the majority's decision to affirm the trial court's dismissal of this property dispute. The majority opinion places much emphasis on the fact that the local church has not “withdrawn” from COGIC, and by citing to Church of God in Christ, Inc. v. Middle City Church of God in Christ, 774 S.W.2d 950 (Tenn. Ct. App. 1989), it suggests that judicial intervention would be improper at this time. Although the Appellees, an apparently vocal group within the local church, still claim that they want to remain a part of COGIC, they refuse to abide by the decisions of the hierarchal church's Ecclesiastical Council, thereby creating, if not an actual withdrawal from the hierarchal church, a schism between the members of the local church. The ecclesiastical decisions having, therefore, been made by the hierarchal church, I am of the opinion that the alleged facts of this case do not prevent judicial intervention to decide the property issues that have arisen between the hierarchal church and members of the local church. From my perspective, they necessitate it. Because resolution of the dispute among the parties is not dependent on the trial court's ruling on matters of conscience or religious doctrine or polity, the trial court should not be precluded from exercising jurisdiction over the case.

The Defendant-Appellant, Richard Lee Morris, was indicted by a Madison County Grand Jury for attempted rape and misdemeanor assault. Following a jury trial, he was convicted of the lesser included offense of sexual battery and the charged offense of assault. See T.C.A. §§ 39-13-505, -101(a)(1) (Supp. 2013). The trial court sentenced Morris as a Range II, multiple offender to four years for the sexual battery conviction and to eleven months and twenty-nine days for the assault conviction and ordered the sentences served consecutively. On appeal, Morris argues that the evidence is insufficient to sustain his assault conviction. Upon review, we affirm the judgment of the trial court.

A Shelby County Criminal Court Jury convicted the appellant, Jerome Sanders, of aggravated robbery, a Class B felony, and the trial court sentenced him as a Range II, multiple offender to eighteen years to be served at eighty-five percent. On appeal, the appellant contends that the the trial court erred by refusing to suppress pretrial identifications of him made by the victim; that the trial court erred by failing to suppress his statement to police; that the trial court improperly questioned the victim, which commented on the evidence and bolstered the victim's credibility; that the trial court should have recused itself because the court's conduct and demeanor created judicial bias; that the trial court admitted evidence in violation of Tennessee Rule of Evidence 404(b); that the trial court erred by admitting the co-defendant's statement into evidence; that the State committed prosecutorial misconduct during closing arguments; and that cumulative error warrants a new trial. Based upon the oral arguments, the record, and the parties' briefs, we conclude that trial court committed reversible error by potentially allowing the jury to hear improper propensity evidence in violation of Rule 404(b), Tennessee Rules of Evidence. Therefore, the appellant's conviction is reversed, and the case is remanded for a new trial, at which another judge shall preside.

The Defendant, Juan E. Henderson, appeals as of right from the Sullivan County Criminal Court's revocation of probation and order that he serve the balance of his seven-year sentence in confinement. On appeal, he asserts that the trial court abused its discretion when it revoked his probation. Following our review, we affirm the judgments of the trial court.

This case involves the termination of a mother's parental rights to her three daughters. The children were previously adjudicated dependent and neglected due to physical abuse of the children by the mother's boyfriend. After the children were in foster care for about a year, the Department of Children's Services filed a petition to terminate the mother's parental rights on several grounds. The trial court found by clear and convincing evidence that three grounds for termination were proven and that termination was in the best interest of the children. The mother appeals. We affirm in part, reverse in part, and remand for further proceedings. We affirm the termination of the mother's parental rights.

This is a termination of parental rights case, focusing on Aaliyah E., the minor child (“the Child”) of Wanda M. (“Mother”) and Christopher E. (“Father”). The Child was taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on November 19, 2013, upon investigation of the Child’s lack of legal guardianship while the parents were incarcerated. On October 30, 2014, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of both parents upon its finding by clear and convincing evidence that (1) the parents abandoned the Child by failing to provide a suitable home, (2) the parents failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, and (3) the conditions leading to the Child’s removal from the home persisted. As to Father, the court also found by clear and convincing evidence that prior to incarceration, he had abandoned the Child by showing wanton disregard for the Child’s welfare. The court further found by clear and convincing evidence that termination of Mother’s and Father’s parental rights was in the Child’s best interest. Mother and Father have each appealed. Having determined that, as DCS concedes, Mother was incarcerated during the entire applicable four-month statutory period following the Child’s removal into protective custody, we reverse the trial court’s finding regarding the ground of abandonment through failure to provide a suitable home as to Mother only. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s and Father’s parental rights to the Child.

The appellant, William Gary Mosley, pled guilty in the Marion County Circuit Court to initiation of a process intended to result in the manufacture of methamphetamine, a Class B felony, and two counts of possession of drug paraphernalia, a Class A misdemeanor, and reserved a certified question of law concerning the sufficiency of the affidavit underlying the search warrant issued in this case.  Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the affidavit failed to establish probable cause for the search warrant.  Therefore, the judgment of the trial court is reversed, the appellant’s convictions are vacated, and the charges are dismissed.

A Robertson County jury convicted the Defendant, Dondrinkus T. Dickerson, of rape, and the trial court sentenced the Defendant to ten years in the Tennessee Department of Correction to be served consecutively to his prior sentences.  On appeal, the Defendant contends that: (1) the evidence is insufficient to support his conviction; and (2) the trial court abused its discretion when it sentenced him.  After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

The Petitioner, Maria Delaluz Urbano-Uriostegui, filed in the Davidson County Criminal Court a petition for post-conviction relief from her conviction of aggravated child abuse, citing multiple issues, including ineffective assistance of counsel.  The post-conviction court summarily dismissed the petition, holding that the issues raised by the Petitioner were previously determined on direct appeal.  On appeal, the Petitioner challenges the post-conviction court’s ruling.  Upon review, we affirm the judgment of the post-conviction court.

Petitioner, Steven Bernard Sydnor, appeals the denial of his petition for post-conviction relief from his Davidson County Criminal Court convictions for second degree murder and theft of property valued over $1000.  Petitioner alleges that he received ineffective assistance of counsel in that trial counsel failed to discuss trial strategy with him and failed to present assisted suicide to the jury as a defense theory.  Upon our review of the record, we affirm the decision of the post-conviction court.

Defendant, Timothy Wayne Johnson, sought relief in Warren County under a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.  The motion was summarily denied, and Defendant timely appealed the ruling.  Upon review, we affirm the judgment of the trial court.

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Appellant, Joshua Johnson, stands convicted of facilitation of attempted first degree murder, employing a firearm during the attempted commission of a dangerous felony with a prior dangerous felony conviction, unlawful possession of a weapon, and aggravated assault. He received an effective sentence of twenty-six years. On appeal, appellant argues that the evidence was insufficient to support his convictions, that he should not have been convicted and sentenced under Tennessee Code Annotated section 39-17-1324 when he was not convicted of any of the listed dangerous felonies, and that the trial court should have granted his request for an absent material witness jury instruction. Following our careful review, we affirm the judgments of the trial court.

Barry Trent, the Executor of the Estate of Dennie Lamar Trent, appeals the order of the Chancery Court for Hawkins County (“the Trial Court”) finding and holding that the claim against the estate filed by Brenda Jefferson for an unpaid $50,000 debt as evidenced by a note is valid. We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm.

Nancy F. Brown (Plaintiff) was walking through and contemplating the rental of a house owned by Nancy Mercer-Defriese and Spencer Defriese (Defendants) when she tripped over a three-inch threshold or step in the doorway between two rooms. She brought this premises liability action, alleging the step was an unreasonably dangerous and defective condition that caused her fall and resulting injuries. During the jury trial that followed, Plaintiff and Defendants presented the testimony of experts. Plaintiff's expert opined that the step was a “trip hazard.” One of the Defendants' experts agreed that the step was a trip hazard, while the other stated that “all stairs are trip hazards.” Plaintiff and Defendants each presented photographs of the doorway showing that the step and the floors on either side of the three-inch change in elevation are in a very similar color. The trial court granted Defendants' motion for a directed verdict at the conclusion of all of the proof, finding that it was not reasonably foreseeable that Plaintiff would trip over the step; that the step was open and obvious; and that Defendants did not owe Plaintiff a duty to warn her of the condition of the step. We hold that the evidence before the trial court and now before us establishes a genuine issue of material facts as to the Defendants' negligence. Accordingly, we vacate the trial court's judgment and remand for further proceedings.