APPELLATE COURT OPINIONS

We granted review in this case to determine whether a jury instruction based on our decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), must be given when a defendant is charged with the offenses of kidnapping and aggravated burglary. The defendants threatened the victim with guns and took her purse as she was getting into her car outside of her residence. The defendants forced the victim to enter her home and followed her inside. They forced the victim to sit on her couch while they ransacked her home. Police apprehended the defendants as they attempted to flee. The defendants were indicted for aggravated robbery of the victim’s purse, aggravated burglary of the victim’s home, especially aggravated kidnapping, and possession of a firearm with the intent to go armed during the commission of a dangerous felony. A jury convicted the defendants of all charges. The trial court set aside the guilty verdicts for especially aggravated kidnapping and aggravated burglary, finding that these convictions, in conjunction with the aggravated robbery convictions, violated principles of due process. The trial court also dismissed the firearms convictions. The Court of Criminal Appeals reversed and reinstated the verdicts. Upon appeal, we remanded the case to the Court of Criminal Appeals for consideration in light of our holding in State v. Cecil, 409 S.W.3d 599 (Tenn. 2013), which made our holding in White applicable to cases in the appellate process. On remand, the intermediate appellate court reached the same result. We hold that a kidnapping charge accompanied by an aggravated burglary charge does not, standing alone, warrant a White jury instruction. However, the trial court erred by not giving a White jury instruction based on the especially aggravated kidnapping and aggravated robbery charges, but the error was harmless beyond a reasonable doubt.

I concur in the Court’s opinion in this case authored by Chief Justice Lee. That opinion represents the correct analysis and result based upon the existing analytical framework currently utilized by this Court in this area of the law. Although I agree that this is not the case to revisit the issue at this point in time, I write separately to express my concern about this existing analytical framework.

The Petitioner, Candance Carol Bush, appeals as of right from the denial of her petition for post-conviction relief.  The Petitioner contends that she received ineffective assistance of counsel based upon trial counsel’s advice that she not testify at trial and counsel’s failure to file a motion to sever the Petitioner’s case from that of her co-defendant.  The Petitioner further contends that the cumulative effect of these errors undermines the confidence in the outcome of her trial such that she is entitled to post-conviction relief.  After a thorough review, we affirm the judgment of the post-conviction court.

Vermaine M. Burns (“the Defendant”) was convicted of several sexual offenses, all stemming from illicit Facebook chats (“chats”) and emails between himself and the victim, K.P. On appeal, the Defendant raises three issues: (1) whether the trial court abused its discretion by admitting into evidence the Defendant’s chats with the victim and an emailed photo of a penis; (2) whether the evidence was sufficient to support the jury’s finding that the Defendant was the author of the communications; and (3) whether the trial court erred by prohibiting the Defendant from referring to a fake Facebook profile created by the Defendant’s stepdaughter. After a review of the record and applicable law, we affirm the judgments of the trial court.

A Shelby County Criminal Court Jury convicted the appellants, Christopher Swift and Marquavious Houston, of first degree premeditated murder; attempted first degree premeditated murder, a Class A felony; and employing a firearm during the commission of a dangerous felony, a Class C felony. After a sentencing hearing, they received effective sentences of life plus twenty-six years. On appeal, the appellants contend that (1) the trial court erred by refusing to sever their trials; (2) the trial court erred by allowing the State to display an assault rifle for demonstrative purposes when the rifle was not used to commit the crimes; (3) the trial court erred by allowing the surviving victim to testify after the police destroyed his recorded statement; and (4) the evidence is insufficient to support the convictions. In addition, Houston contends that (5) the State’s failure to name the predicate felony in count 3 of the indictment, employing a firearm during the commission of a dangerous felony, voids the charge and (6) that the trial court erred by ordering consecutive sentencing. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court committed reversible error in Swift’s case by refusing to sever the appellants’ trials and by allowing the State to show the jury an assault rifle that was not used in the crimes. Therefore, his convictions are reversed, and his case is remanded to the trial court for a new trial. Houston’s convictions and sentences, however, are affirmed.

I concur with the results and most of the reasoning in the majority opinion. I respectfully disagree, however, with the majority’s conclusion that the trial court abused its discretion when it failed to grant Defendant Swift’s motion to sever. In my view, neither Rule 8 or Rule 14 of the Rules of Criminal Procedure required the trial court to grant Defendant Swift’s motion to sever. Furthermore, I am satisfied that the trial court gave clear and correct instructions on how the jury was to consider the evidence as to each Defendant. The manner in which the evidence was admitted by the trial court did not so prejudice Defendant Swift as to require severance.

The Defendant-Appellant, Narrell Christopher Pierce, was convicted by a Davidson County Criminal Court jury of attempted aggravated robbery, attempted second degree murder, employment of a firearm during the commission of a dangerous felony, and unlawful possession of a handgun by a felon.  The trial court sentenced the Defendant to an effective sentence of 51 years’ confinement.  On appeal, the Defendant-Appellant argues: (1) the trial court erred in denying the Defendant’s motions to suppress (a) the victim’s identification testimony, (b) evidence obtained as a result of the Defendant’s arrest, and (c) evidence obtained pursuant to a search warrant; (2) the trial court erred in refusing to allow the Defendant to cross-examine a witness about alleged acts of untruthfulness; (3) the trial court erred in denying the Defendant’s motion to dismiss count 3 of the indictment and allowing the State to amend that count of the indictment; (4) the evidence is insufficient to sustain the Defendant’s convictions of attempted second degree murder and employing a firearm during the commission of a dangerous felony; and (5) the trial court abused its discretion in sentencing the Defendant as a career offender to 51 years’ confinement.  Upon review, we affirm the judgments of the trial court.

A Lauderdale County jury convicted the Defendant-Appellants, Gregory Nelson and Tina Nelson, of the charged offenses of first degree felony murder during the perpetration of aggravated child abuse and aggravated child abuse. Tina Nelson was sentenced to life imprisonment for the first degree felony murder conviction and to fifteen years for the aggravated child abuse conviction, and Gregory Nelson was sentenced to life imprisonment for the first degree murder conviction and to twenty years for the aggravated child abuse conviction. In this consolidated appeal, Gregory and Tina Nelson argue that the evidence is insufficient to sustain their convictions. Upon review, we affirm the judgments of the trial court.

We granted permission to appeal in this case to address whether the evidence established that the plaintiff police officer was discharged solely in retaliation for conduct protected under the Tennessee Public Protection Act,Tennessee Code Annotated section 501-304, sometimes called the Whistleblower Act. The chief of police for the defendant municipality had the plaintiff police officer “fix” a traffic ticket for a relative. After the plaintiff officer complained to the mayor that the police chief had pressured him into illegal ticket fixing, the police chief discharged the plaintiff. The defendant municipality claimed that it terminated the officer’s employment because he violated the chain of command by reporting the ticket fixing to the mayor, and also because he undermined the chief’s authority with the other officers in the police department. We hold that the municipality’s assertion that it discharged the plaintiff for going outside of the chain of command amounts to an admission that it retaliated against the plaintiff for refusing to remain silent about illegal activities, conduct that is protected under the Tennessee Public Protection Act. After a review of the record, we also hold that the evidence preponderates in favor of a finding that the second reason proffered by the municipality for the officer’s discharge, that he undermined the police chief’s authority, is pretext for retaliation. Accordingly, we hold that the plaintiff was discharged solely in retaliation for conduct protected under the Public Protection Act.

We granted permission to appeal in this case to address whether the evidence established that the plaintiff police officer was discharged solely in retaliation for conduct protected under the Tennessee Public Protection Act, Tennessee Code Annotated section 50-1-304, sometimes called the Whistleblower Act. The chief of police for the defendant municipality had the plaintiff police officer “fix” a traffic ticket for a relative. After the plaintiff officer complained to the mayor that the police chief had pressured him into illegal ticket fixing, the police chief discharged the plaintiff. The defendant municipality claimed that it terminated the officer’s employment because he violated the chain of command by reporting the ticket fixing to the mayor, and also because he undermined the chief’s authority with the other officers in the police department. We hold that the municipality’s assertion that it discharged the plaintiff for going outside of the chain of command amounts to an admission that it retaliated against the plaintiff for refusing to remain silent about illegal activities, conduct that is protected under the Tennessee Public Protection Act. After a review of the record, we also hold that the evidence preponderates in favor of a finding that the second reason proffered by the municipality for the officer’s discharge, that he undermined the police chief’s authority, is pretext for retaliation. Accordingly, we hold that the plaintiff was discharged solely in retaliation for conduct protected under the Public Protection Act.

The defendant, Thomas William Whited, was convicted of nine counts of especially aggravated sexual exploitation of a minor, a Class B felony; one count of attempted especially aggravated sexual exploitation of a minor, a Class C felony; thirteen counts of observation without consent, a Class A misdemeanor; and one count of attempted observation without consent, a Class B misdemeanor. The defendant received an effective sentence of twenty-two years. On appeal, the defendant argues that: (1) the evidence is insufficient to support a finding that the defendant used a minor in the production of material that included the minor engaging in “sexual activity”; (2) the trial court erred in refusing to provide the jury with his proposed special instructions; (3) the trial court erred in refusing to permit cross-examination of the victims at the sentencing hearing; and (4) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the criminal court.

I must respectfully disagree with the conclusion reached by the majority. Let me begin by recognizing that surreptitiously recording a minor in the privacy of her bedroom or bathroom while she undresses is reprehensible, abhorrent, and criminal. See Tenn. Code Ann. §39-13-605. However, whether this conduct rises to the level necessary to sustain the convictions for especially aggravated sexual exploitation of a minor is another question. For this offense, the State was required to show that the minor in the videos was engaged in sexual activity. As applicable here, the statutory definition of sexual activity required the State to prove that the video contained the lascivious depiction of the victim’s breasts, buttocks, and/or genitalia. After applying the guidelines outlined in Dost and given the below reasoning and authority, I am unable to conclude that the images depicted in the video were lascivious. Therefore, I would reverse the convictions of especially aggravated sexual exploitation of a minor in this case. In reaching this conclusion, I would apply the sixth Dost factor, whether the visual depiction is intended or designed to elicit a sexual response in the viewer, objectively rather than subjectively, as this court previously held in State v. John Michael Whitlock, No. E2010-00602-CCA-R3-CD, 2011 WL 2184966, at *7 (Tenn. Crim. App. June 6, 2011) (reviewing whether a videotape constituted “lascivious exhibition” of a girl’s pubic area and concluding that the sixth Dost factor must be analyzed objectively rather than subjectively). Finally, because there is sufficient evidence for a reasonable jury to conclude that the Defendant attempted to capture lascivious images on the video, I would reduce his convictions to attempted especially aggravated sexual exploitation of a minor and remand this matter to the trial court for re- sentencing.

The Defendant, Christopher Lee Goins, appeals as of right from the Blount County Circuit Court’s revocation of his community corrections sentences and order of incarceration. The Defendant contends that the trial court abused its discretion in revoking his community corrections sentences and ordering his original sentences into effect. Discerning no error, we affirm.

The defendant, Craig Michael Barbee, was convicted of attempted second degree murder, especially aggravated robbery, two counts of aggravated robbery, employing a firearm during the commission of a dangerous felony, and two counts of aggravated assault, which were merged with the aggravated robbery convictions. He received an effective sentence of 106 years. On appeal, the defendant argues that the trial court erred by not granting his motion for change of venue and in sentencing. Following our review, we affirm the judgments of the trial court.

The Petitioner, Brian Roberson, appeals the Williamson County Circuit Court’s denial of his petition for writ of habeas corpus.  The Petitioner previously entered guilty pleas to two counts of sale of cocaine (counts 1 and 3) and possession of cocaine (count 5).  On appeal, he argues that he is entitled to withdraw his guilty pleas because the illegal sentences in counts 1 and 3 were a material, bargained-for element of his plea agreement.  Upon review, we affirm the judgment of the habeas corpus court.  However, we remand this matter to the original court of conviction for entry of corrected judgments consistent with this opinion.

Defendant, Gregory Lee Bray, was indicted in two separate cases for delivering Schedule IV substances. After pleading guilty in two separate cases to a total of two counts of delivery of a Schedule IV substance, Defendant was sentenced to an effective sentence of twenty years. Defendant appeals, challenging the trial court‟s imposition of consecutive sentences and denial of an alternative sentence. After a review, we determine there is no evidence that the trial court abused its discretion in sentencing Defendant to an effective sentence of twenty years or that the trial court improperly denied alternative sentencing. Consequently, the judgments of the trial court are affirmed.

The petitioner, Deshaun Jantuan Lewis,appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that he received ineffective assistance of appellate counsel.  Based upon our review, we affirm the denial of the petition.

Petitioner, Kevin Lee Johnson, was convicted of being a habitual motor vehicle offender, driving under the influence, and felony failure to appear, for which he received an effective sentence of nine years, six months to be served in the Tennessee Department of Correction.  He filed a petition for post-conviction relief alleging, inter alia, ineffective assistance of counsel for failing to provide him with a copy of the order declaring him to be a habitual motor vehicle offender.  The post-conviction court denied relief, and petitioner presents the same issue on appeal.  Following our review, we affirm the judgment of the post-conviction court.

Charles Riley, Jr. (“the Defendant”) appeals as of right from the trial court’s order revoking his probation, arguing the trial court abused its discretion when it determined that he violated probation.  Upon review, we affirm the judgment of the trial court.

A Marshall County Circuit Court jury convicted the Defendant-Appellant, Claudale Renaldo Armstrong, of sale of .5 grams or more of cocaine base; delivery of .5 grams or more of cocaine base; sale of less than .5 grams of cocaine; and delivery of less than .5 grams of cocaine.  See T.C.A. § 39-17-417 (2011). The trial court merged the four alternative counts into two convictions and sentenced Armstrong as a Range II, multiple offender to a total effective sentence of twenty-six years in the Department of Correction.  The sole issue presented for our review is whether the evidence is sufficient to support the convictions.  Upon review, we affirm the judgments of the trial court.

Husband was ordered in an earlier proceeding to increase his alimony and child support payments to Wife. The following year, Husband filed a petition to reduce his alimony and child support payments due to a substantial and material change of circumstances. Husband alleged both that Wife was cohabitating with another person and that Husband’s income had significantly decreased. The trial court denied Husband’s petition and awarded Wife attorney’s fees. Husband appeals, and we affirm the trial court’s judgment in all respects.

This is an interlocutory appeal of the Tennessee Claims Commission’s denial of Appellant State of Tennessee’s motion to dismiss the Appellees’ appeal of the denial of her tort claim by the Division of Claims Administration. Appellee filed her notice of appeal with the Commission 91 days after notice of the denial of her claim. Although Tennessee Code Annotated Section 9-8-402(c) allows only 90 days for a party to appeal the denial of his or her claim, the Commission applied Tennessee Rule of Civil Procedure 6.05 to enlarge the time by three days and, thus, held that Appellees’ notice of appeal was timely. We conclude that Tennessee Rule of Civil Procedure 6.05 is inapplicable to this case. Accordingly, we hold that Appellees’ appeal was not timely filed so as to confer jurisdiction over her claim to the Commission. Because the Commission lacked jurisdiction, the State was entitled to dismissal of the appeal. Reversed and remanded with instructions.

The trial court entered an order establishing paternity and setting child support for a non-marital child. The trial court also granted J. W. B.’ s (hereinafter “Father”) oral motion to change the child’s surname from T. H.’ s (hereinafter “Mother”) to Father’s. Mother appeals only the order changing the child’s surname. We reverse.

The majority concludes that Appellee’s failure to file her notice of appeal with the Claims Commission within ninety days of the date the Division of Claims Administration denied the claim is fatal to her appeal. See generally Tenn. Code Ann. § 9-8-402(c). Because I conclude that the issue of whether a notice of appeal to the Claims Commission is jurisdictional is a matter of some import that should first be decided by the Claims Commission, I must respectfully dissent from the majority Opinion.

After foreclosing on three lots securing three loans, the mortgagee, Heritage Bank, sought to satisfy the outstanding deficiency by foreclosing on the debtors’ family-owned property that additionally secured these obligations. To prevent the impending foreclosure, the debtors commenced this action contending they are not liable for the deficiency because the properties sold at foreclosure for an amount materially less than their fair market value. In its answer, the bank asserted a counterclaim seeking a deficiency judgment and attorneys’ fees. At the close of the debtors’ case-in-chief, the bank moved for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2). The trial court granted the motion, finding that the debtors failed to prove the fair market value of the three properties at the time of each foreclosure was materially less than the foreclosure sale prices; therefore, the debtors failed to overcome the presumption afforded by Tenn. Code Ann. § 35-5-118(b) that the foreclosure sale prices equaled the fair market value. The court then conducted a trial on the bank’s counterclaim for the deficiency and awarded the bank a judgment of $111,115.66. The trial court also awarded attorney’s fees in the amount of $55,000, which was substantially less than the bank requested. Both parties appeal. The debtors contend the trial court erred in dismissing their claim because they presented sufficient proof that the sale prices were materially less than fair market value; they also contend the bank was not entitled to recover its attorneys’ fees. The bank contends the trial court erred by reducing its fee application. We have determined the debtors failed to prove that the sales price for each of the foreclosed properties was materially less than their fair market value at the time of each sale, and we find no error with the award of attorneys’ fees. Accordingly, we affirm.