APPELLATE COURT OPINIONS

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. After finding that William DeMorato ("Employee") suffered a bilateral carpal tunnel injury in the course and scope of his employment with Trans Carriers, Inc. ("Employer"), the trial court awarded permanent partial disability benefits of 15% to each arm and temporary total disability benefits of $104,948.02. After Employer filed a motion to alter or amend the judgment, however, the trial court concluded that Employee was not entitled to temporary total disability benefits. Employee argues that the trial court erred in finding that he was not entitled to temporary total disability benefits. Employer argues that the trial court erred in finding that Employee suffered a compensable injury. We affirm the trial court's judgment.

The Petitioner, Gregory Hill, appeals from the Knox County Criminal Court's denial of his petition for post-conviction relief, wherein he challenged his jury convictions for two counts of aggravated assault and resulting sixteen-year sentence. In this appeal as of right, the Petitioner contends that he received the ineffective assistance of trial counsel in the following ways: (1) because trial counsel advised him to reject a favorable guilty plea with a six-year sentence and for which he could apply for probation, opining to the Petitioner that there was a strong chance of acquittal if he proceeded to trial; (2) because trial counsel advised him against testifying on his own behalf, and his decision to do so, based upon that advice, severely limited the evidence put forth to the jury supporting his claim of self-defense; and (3) because, following the trial court's ruling excluding the Petitioner's brother's testimony about a similar act of violence by one of the victims, trial counsel failed to make an offer of proof of said testimony. Discerning no error, we affirm the judgment of the post-conviction court.

In this capital case, the jury convicted the Defendant, Rickey Alvis Bell, Jr., of two alternative counts of first degree felony murder, one count of especially aggravated kidnapping, and one count of aggravated sexual battery. The jury sentenced the Defendant to death for the first degree murder based on four aggravating circumstances. On direct appeal, the Court of Criminal Appeals affirmed the Defendant’s convictions. The Court of Criminal Appeals concluded that the record did not support two of the aggravating circumstances but nonetheless affirmed the death sentence. We now address the following issues: (1) whether the trial court erred in denying the Defendant’s motion to strike the death notice on the ground that he is intellectually disabled; (2) whether Tennessee’s statute prohibiting the execution of intellectually disabled persons is unconstitutional; (3) whether the trial court erred in denying the Defendant’s two motions for mistrial; (4) whether the trial court erred by refusing to allow the Defendant to adduce evidence that the victim’s husband was having an extramarital affair at the time the victim was murdered; (5) whether the evidence was sufficient to support the Defendant’s convictions; and (6) our mandatory review of the Defendant’s death sentence. Upon our thorough review of the record and applicable law, we affirm the Defendant’s convictions and death sentence.

A Shelby County Criminal Court Jury convicted the appellant, Louis Still, of operating a motor vehicle after having been declared a motor vehicle habitual offender, a Class E felony, and the trial court sentenced him to four years to be served as one month in confinement and the remainder on supervised probation. On appeal, the appellant contends that the evidence is insufficient to support the conviction because the State's key witness, the arresting officer, was not credible. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

In this termination of parental rights case, the minor child was taken into custody by the Tennessee Department of Children’s Services (“DCS”) in February 2014 shortly after Mother’s return to jail following the child’s birth during a furlough. In June 2014, DCS filed a petition to terminate Mother’s parental rights alleging that she was mentally incompetent to parent the child under Tennessee Code Annotated § 36-1-113(g)(8) and that she had abandoned the child pursuant to Tennessee Code Annotated § 36-1-113(g)(1) and Tennessee Code Annotated § 36-1-102(1)(A)(iv). Following a trial, the trial court terminated Mother’s parental rights upon both grounds pled by DCS. Although on appeal we conclude that the abandonment ground was not proven by clear and convincing evidence, we affirm the trial court’s judgment in all other respects.

The Juvenile Court for Rutherford County (“the Juvenile Court”) terminated the parental rights of Joshua L. (“Father”) to the minor children Kelsey L. and Karlie L. (“the Children”) after finding and holding that grounds to terminate had been proven by clear and convincing evidence and that it also had been proven by clear and convincing evidence that the termination was in the Children’s best interest. Father appeals the termination of his parental rights to the Children raising a single issue regarding the Juvenile Court’s finding as to best interest. We find and hold that the evidence does not preponderate against the Juvenile Court’s findings made by clear and convincing evidence that grounds existed to terminate Father’s parental rights to the Children and that it was in the Children’s best interest for Father’s parental rights to be terminated. We, therefore, affirm. 

The Final Decree of Divorce from which the pro se incarcerated appellant, Treavor E. Warren, seeks to appeal was entered on December 19, 2014. The Notice of Appeal was not timely filed even if the date affixed to the Notice by the appellant (January 30, 2015) is considered. See Tenn. R. App. P. 20(g). Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

A Shelby County Grand Jury returned an indictment against Defendant, Michael Brooks, charging him with two counts of especially aggravated kidnapping, two counts of aggravated robbery, two counts of aggravated assault, aggravated burglary, and employing a firearm during the commission of a felony. Two co-defendants were also indicted with Defendant, but Defendant was tried by himself. After the jury trial, Defendant was convicted of one count of especially aggravated kidnapping, two counts of facilitation of aggravated robbery, one count of assault, and aggravated burglary. He was acquitted of the other charges. The trial court imposed a sentence of eighteen years for especially aggravated kidnapping, four years for each count of facilitation of aggravated robbery, eleven months and twenty-nine days for assault, and four years for aggravated burglary. The trial court ordered the sentences to be served concurrently for an effective eighteen-year sentence. On appeal, Defendant argues that the evidence was insufficient to support his conviction for especially aggravated kidnapping and that his sentence is excessive. After a thorough review of the record, we affirm the judgments of the trial court.

Appellant, David W. Camp, appeals from the Madison County Circuit Court’s finding of criminal contempt for his failure to appear at a scheduled court appearance for Mr. Camp’s client, Christopher Anderson, the defendant in this case. The trial court summarily convicted Appellant under Tennessee Rule of Criminal Procedure 42(a), finding that Appellant was in direct contempt of court and that Appellant’s conduct was in the presence of the court. The trial court relied upon text messages received from Appellant explaining his whereabouts at the time of the scheduled court appearance. We conclude that the trial court’s finding that Appellant’s conduct was in the presence of the court is error, and therefore, we remand this case for a hearing in accordance with Tennessee Rule of Criminal Procedure 42(b).

Appellant, Dung Tran, was convicted of theft of property valued at $1,000 or more but less than $10,000, a Class D felony; vandalism valued at $1,000 or more but less than $10,000, a Class D felony; burglary, a Class D felony; and unlawful possession of burglary tools, a Class A misdemeanor. The trial court sentenced appellant to eight years as a Range II, multiple offender for each conviction of theft, vandalism, and burglary and to eleven months, twenty-nine days for the possession of burglary tools conviction. The sentences were aligned concurrently for an effective sentence of eight years. On appeal, appellant argues that the evidence was insufficient to support his theft and vandalism convictions. Following our thorough review of the record, the parties' arguments, and the applicable law, we affirm the judgments of the trial court.

Following the execution of a search warrant for his property and residence, the Defendant-Appellant, Jerry Lewis Tuttle, was indicted by the Maury County Grand Jury in case number 21695 for possession of .5 grams or more of cocaine with intent to sell, possession of not less than one-half ounce nor more than ten pounds of marijuana with intent to sell, and being a felon in possession of a firearm.  He was also indicted by the Maury County Grand Jury in case number 22091 for conspiracy to possess marijuana in an amount over 300 pounds with intent to sell or deliver within 1000 feet of a school, conspiracy to commit money laundering, money laundering, possession of a firearm with the intent to go armed during the commission of a dangerous felony, and acquiring or receiving property subject to judicial forfeiture pursuant to Tennessee Code Annotated section 39-11-703.  The Defendant-Appellant filed motions to suppress the evidence seized and to dismiss the forfeiture count, which were denied by the trial court following a hearing. At trial, the Defendant-Appellant was convicted in case number 21695 of the lesser included offense of simple possession of cocaine and the charged offense of possession of marijuana with intent to sell; the count charging him with being a felon in possession of a firearm was dismissed.  In case number 22091, the Defendant-Appellant was convicted of the lesser included offense of conspiracy to possess marijuana in an amount over 300 pounds with intent to sell or deliver as well as the charged offenses of conspiracy to commit money laundering, money laundering, and possession of a firearm with the intent to go armed during the commission of a dangerous felony.  Following a bench trial on the judicial forfeiture count, the trial court denied the forfeiture of several items seized but ordered the forfeiture of other items, including the $1,098,050 that is at issue on appeal.  After a sentencing hearing on the other counts, the trial court imposed an effective sentence of fifty years with a release eligibility of thirty-five percent.  On appeal, the Defendant-Appellant argues:  (1) that the search of his property violated his constitutional right against unreasonable searches and seizures because the affidavit in support of the search warrant did not provide probable cause for the issuing judge to believe that evidence of a crime would be found on his property and in his home; (2) the evidence is insufficient to sustain his conspiracy convictions; and (3) he is entitled to the return of the $1,098,050 because the cash seized was obtained by him more than five years prior to the seizure and because the seizing agent failed to deliver a notice of seizure to him at the time the cash was seized.  Upon review, we reverse the Defendant-Appellant’s convictions.  However, we affirm the trial court’s judgment in regard to the forfeiture proceedings.

The employee alleged that he sustained a compensable injury to his lower back. His employer initially accepted the claim but later denied it. The trial court found that the employee had sustained a compensable injury. It further found that the testimony of Employee's evaluating physician overcame the presumption of correctness attached to a Medical Impairment Registry (“MIR”) evaluation by clear and convincing evidence. The employer has appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennesssee Supreme Court Rule 51. We conclude that the trial court erred by finding that the MIR presumption had been overcome, and we modify the judgment accordingly. The judgment is affirmed in all other respects.

I concur with the majority’s opinion in its affirmation of the trial court’s forfeiture order.  I respectfully disagree with the majority’s conclusion that the affidavit supporting the search warrant was insufficient to establish probable cause.  Instead, I would affirm the trial court’s denial of appellant’s motion to suppress and would conclude that the evidence was sufficient to support appellant’s convictions.

An employee alleged that he developed cubital tunnel syndrome and carpal tunnel syndrome as a result of his work activities. His employer provided medical treatment for the former condition but denied liability for both conditions at trial. The trial court found that the cubital tunnel syndrome was compensable but the carpal tunnel syndrome was not. It further found that Employee had a meaningful return to work, thus limiting his recovery to one and one-half times the anatomical impairment. The employee has appealed, asserting that the evidence preponderates against the trial court's findings regarding his carpal tunnel syndrome and return to work. The employer contends that the evidence preponderates against the finding that the cubital tunnel syndrome was compensable. Pursuant to Tennessee Supreme Court Rule 51, the appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. We affirm the judgment.

A Davidson County Criminal Court Jury convicted the appellant, Vernon Elliott Lockhart, of one count of conspiracy to sell 300 pounds or more of marijuana within a drug-free school zone, a Class A felony; one count of possession of 300 pounds or more of marijuana with intent to deliver within a drug-free school zone, a Class A felony; ten counts of money laundering, a Class B felony; one count of possession of ten pounds or more of marijuana with intent to deliver within a drug-free school zone, a Class C felony; and one count of facilitation of possession of ten pounds or more of marijuana with intent to deliver, a Class E felony. After a sentencing hearing, the appellant received an effective ninety-four-year sentence. On appeal, the appellant contends that the trial court erred by refusing to suppress evidence obtained from the wiretaps of various cellular telephones; that the trial court erred by denying his motions to suppress evidence based upon the unlawful attachment of GPS tracking devices on two vehicles and the unlawful GPS tracking of a co-defendant’s cellular telephone; that the trial court erred by denying his motions to suppress evidence seized pursuant to an unlawful search warrant for his home; that the trial court incorrectly ruled that a detective could testify as an expert in the identification and interpretation of drug ledgers; that the trial court improperly limited his cross-examination of a State witness; that the evidence is insufficient to support the convictions; that his effective sentence is excessive; and that cumulative error warrants a new trial. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence is insufficient to support the appellant’s money laundering convictions in counts 14, 16, and 31. Therefore, those convictions are reversed, and the charges are dismissed. We also conclude that the trial court mistakenly sentenced the appellant in count 36 to the charged offense of possession of ten pounds or more of marijuana with intent to deliver rather than the convicted offense of facilitation, modify the appellant’s sentence for the conviction from four to two years, and remand the case to the trial court for correction of the judgment. The appellant’s remaining convictions and effective ninety-four-year sentence are affirmed.

The petitioner, Adrian Wilkerson, appeals pro se from the summary dismissal of his 2014 petition for post-conviction relief, which challenged his 1996 convictions of first degree felony murder, especially aggravated robbery, and theft of property valued at $1000 or more but less than $10,000. Because the petition was filed more than a decade beyond the applicable statute of limitations, because this is the petitioner’s second successive petition for post-conviction relief, and because the petitioner failed to either allege or prove a statutory exception to the timely filing or a due process tolling of the statute of limitations, we affirm the judgment of the post-conviction court.

The Defendant, Tracy Lynn Carman-Thacker, was convicted in a bench trial in the Coffee County Circuit Court of twelve counts of unlawful possession of a firearm while subject to an order of protection and twelve counts of violating an order of protection by possessing a firearm, all Class A misdemeanors. See T.C.A. §§ 39-13-113 (2014) (violation of an order of protection or restraining order), 39-17-1307 (Supp. 2012) (amended 2014) (unlawful carrying or possession of a weapon). On appeal, the Defendant contends that the trial court erred in denying her motion to suppress the evidence found during a search of her house and that the evidence is insufficient to support her convictions. We vacate the Defendant’s convictions and dismiss the charges.

The Defendant-Appellant, Walter Francis Fitzpatrick, III, was indicted by the McMinn County Grand Jury for harassment, aggravated perjury, stalking, and extortion. The trial court granted the defense's motion for judgment of acquittal as to the stalking charge after the close of the State's proof at trial, and it was dismissed. The jury convicted Fitzpatrick of aggravated perjury and extortion, Class D felonies, but found Fitzpatrick not guilty of harassment, a Class A misdemeanor. T.C.A. §§ 39-16-703; 39-14-112; 39-17-308. The trial court sentenced Fitzpatrick to concurrent sentences of three years with a release eligibility of thirty percent for his aggravated perjury and extortion convictions and ordered these sentences to be served consecutively to his misdemeanor convictions in Monroe County for disrupting a meeting and resisting arrest in case number 10-213, resisting arrest in case number 11-018, and tampering with government records in case number 12-108.1 On appeal, Fitzpatrick argues: (1) the trial court lacked jurisdiction over his case because a grand jury member voting to indict him was disqualified by reason of interest, and (2) the evidence is insufficient to support his convictions. Upon review, we affirm the judgments of the trial court.

The defendant, David Leon Graves, was convicted by a Wilson County Criminal Court jury of two counts of attempted first degree premeditated murder, a Class A felony; one count of assault, a Class B misdemeanor; and one count of reckless endangerment, a Class E felony.   He was sentenced by the trial court as a Range I, standard offender to twenty-five years and twenty years, respectively, for the attempted murder convictions, six months for the assault conviction, and two years for the reckless endangerment conviction.  The trial court ordered the twenty-year sentence served consecutively to the twenty-five-year sentence, for an effective term of forty-five years in the Department of Correction. The defendant raises six issues on appeal: (1) whether the evidence is sufficient to sustain the convictions; (2) whether the trial court erred by allowing evidence of statements the defendant made while hospitalized; (3) whether the trial court erred by admitting a photograph of the victim’s injuries; (4) whether the trial court erred by not allowing evidence about a prior frivolous 9-1-1 call made by the defendant’s girlfriend; (5) whether the defendant’s convictions and sentences violate principles of double jeopardy; and (6) whether the trial court erred in ordering consecutive sentencing.  Following our review, we affirm the judgments of the trial court.

Appellant employee appeals from the denial of her claim for unemployment compensation. Because there is substantial and material evidence in the record to establish that the employee was discharged for work-related misconduct, we affirm.

Patrick James O'Brien, Jr., (“the Appellant”) pleaded guilty to reckless homicide and possession of a schedule II drug. Pursuant to a plea agreement, the Appellant was sentenced to concurrent, four-year sentences. The trial court denied alternative sentencing. The Appellant filed an appeal alleging that the trial court erred in denying him alternative sentencing. Upon review, we affirm the judgments of the trial court.

Following a jury trial, Anthony B. Whitaker (“the Defendant”) was convicted of aggravated statutory rape. On appeal, the Defendant argues that the trial court erred when it did not give the jury a missing witness instruction. Additionally, the Defendant claims that the language in the presentment was deficient because the presentment did not include “recklessly” as a culpable mental state. After review of the record and applicable law, we affirm the judgment of the trial court.

This appeal involves post-divorce child support matters. Heather Russell Wilder (“Mother”) filed a petition in the Fourth Circuit Court for Knox County (“the Trial Court”) for modification of child support against Joseph Chamblee Wilder (“Father”). Mother later alleged that Father had fraudulently misstated his true income, and that he owed more in support towards the parties' three children (“the Children”) than had been ordered. The Trial Court adopted the Magistrate's findings and recommendations and held that Mother could not obtain Rule 60 relief on her fraud claim as time had expired. Mother appeals to this Court raising a number of issues. We affirm the Trial Court.

This is a negligence action. The plaintiff sustained injuries to her foot and heel while attempting to use a water slide on the defendants’ property. The plaintiff filed suit against the defendants exactly one year after her injury. The complaint, filed against “Robin Nichols and Willow Brook Lodge,” failed to include the proper name of the company, which is “Accommodations by Willow Brook Lodge, LLC.” Approximately fifteen days after filing the complaint, instead of serving Robin Nichols, the plaintiff served her son, Grant Nichols. The defendants’ answer made the errors known, but the plaintiff’s counsel was dilatory in filing a motion to amend. Upon the defendants filing a motion for summary judgment claiming that the suit was barred by the statute of limitations, the trial court granted the motion. We affirm the decision of the trial court.