APPELLATE COURT OPINIONS

The Defendant-Appellant, Jerome Johnson, was indicted by a Shelby County Grand Jury for attempted second degree murder in count 1, aggravated assault in count 2, and solicitation to commit the offense of filing a false police report in count 3. Following a jury trial, Johnson was convicted in count 1 of the lesser included offense of reckless endangerment, a Class A misdemeanor; in count 2 of the charged offense of aggravated assault, a Class C felony; and in count 3 of the charged offense of solicitation to commit the offense of filing a false police report, a Class A misdemeanor. The trial court sentenced Johnson as a Range III, persistent offender to fifteen years’ imprisonment for the aggravated assault conviction and eleven months and twenty-nine days’ imprisonment for the reckless endangerment and solicitation to commit the offense of filing a false police report convictions. The court ordered that the sentences for the reckless endangerment and aggravated assault convictions be served concurrently and ordered that the sentence for the solicitation conviction be served consecutively to the other two sentences for an effective sentence of fifteen years plus eleven months and twenty-nine days. On appeal, Johnson argues that the evidence is insufficient to sustain his convictions. Upon review, we affirm the judgments of the trial court.

In suit brought by condominium Homeowner’s Association, former owner of condominium unit which was ordered sold after being determined to constitute a nuisance, appeals the trial court’s order granting the Association’s application for attorneys’ fees. Finding that the trial court did not abuse its discretion in making the award, we affirm the judgment.
 

This is a suit by Terry Mullins seeking a declaration that the Defendants, the Lockes (who are brothers) and the Gillespies (who are husband and wife) – whose properties lie near to, and south of, the Plaintiff’s property – have no right to the use of a driveway across the Plaintiff’s property to Vera Drive in Rhea County. The Defendants claim that they have a prescriptive easement, measuring some 47 feet long and 50 feet wide, enabling them to access Vera Drive over the Plaintiff’s property. This matter was before us at an earlier time. Because the statement of the evidence presented to us on the first appeal was, in our words, “a one-sided argumentative presentation of the evidence favorable to the Plaintiff,” we remanded this case to the trial court, pursuant to the provisions of Tenn. Code Ann. § 27-3- 128 (2000). (Emphasis in original.) In our remand, we advised the parties that we were taking this action “so a proper statement of the evidence c[ould] be prepared.” (Footnote in original omitted.) Such a statement has now been filed. Upon consideration of the very thorough statement prepared by the trial court, we conclude that the evidence does not preponderate against the court’s judgment finding and holding that the Defendants have a prescriptive easement over the property of the Plaintiff. Accordingly, we affirm.

The Petitioner, Donald Smith, contends that his guilty plea was not knowingly and intelligently entered because he was not coherent at the hearing due to mental incapacities and that trial counsel was deficient for failing to request a mental evaluation. After considering the record and the relevant authorities, we affirm the judgment of the postconviction court.

The basic issues in this appeal involve the valuation of a decedent’s business at the time of his death. After the decedent died, the decedent’s mother was appointed administratrix of his estate. She filed this lawsuit against the decedent’s wife and the decedent’s wife’s brother, alleging that they had wrongfully disposed of virtually all of the decedent’s property after his death, including his business assets, therebyrendering a proper administration of the estate extremely difficult if not impossible. Following a four-day bench trial, the trial court concluded that the defendants had wrongfully taken possession of the decedent’s business assets and converted them to their own personal use. Relevant to this appeal, the court valued the decedent’s business at $75,000, and it held that the defendants were jointly and severally liable to the estate for that amount. The defendants appeal, challenging only the amount of damages awarded by the trial court for the value of the business.  After a careful review of the record, we affirm

After some 16 years of marriage, Sharon Clayman Sitz (“Wife”) sued William Grant Sitz (“Husband”) for divorce. Following a bench trial, the court awarded Wife a divorce on the ground of inappropriate marital conduct. The court adopted Wife’s proposed parenting plan, which made Wife the primary residential parent of their minor child and divided the marital property. The court further determined that Husband was voluntarily underemployed and imputed additional income to him in order to calculate his child support obligation. Husband appeals. We affirm with one modification.

Petitioner, Michael W. Smith, appeals the habeas corpus court’s dismissal of his pro se petition for habeas corpus relief. On direct appeal from his convictions for assault and aggravated burglary in Shelby County, this Court determined that the trial court constructively amended the indictments during the jury charge causing reversible error. See State v. Michael Smith, No. W2011-01630-CCA-R3-CD, 2013 WL 3702369 at *7-8 (Tenn. Crim. App., at Jackson, July 12, 2013). As a result, Petitioner’s convictions were reversed and remanded for a new trial. Id. at 1. Because the habeas corpus petition in this case seeks a new trial, the judgment of this Court on direct appeal granting a new trial renders the instant appeal moot. Accordingly, Petitioner’s appeal is dismissed.

Firstbank (“Plaintiff”) sued Landview Construction, LLC, Winston D. Cox (“Defendants”), and Beverly Linkous with regard to promissory notes secured by deeds of trust on three parcels of real property located in Knoxville, Tennessee. The parties attempted to enter into stipulations in lieu of presenting testimony at trial and informed the Trial Judge of these purported stipulations. After what passed as the trial, the Trial Court entered its Final Judgment finding and holding, inter alia, that Plaintiff be awarded a judgment in the amount of $149,192.22 against defendants Landview Construction, LLC and Winston D. Cox jointly and severally. Defendants appeal to this Court alleging that the Trial Court misconstrued the stipulations and as a result erred in the amount of the judgment. We find and hold that the purported stipulations were insufficient to show that the parties reached any agreement as to the stipulations. We, therefore, vacate the Trial Court’s judgment and remand this case for a new trial.

Appellant, Perry Neal Barham, was indicted by the Chester County Grand Jury for one count of rape of a child and one count of aggravated sexual battery. The State subsequently dropped the rape charge. Appellant was convicted by a jury of aggravated sexual battery and sentenced by the trial court as a Range II offender to twenty years with a 100 percent release eligibility. On appeal, Appellant argues that the trial court erred in denying his motion to allow the presentation of evidence of the victim’s prior sexual history under Rule 412 of the Tennessee Rules of Evidence, that the evidence was insufficient to support his conviction, and that the trial court erred in sentencing him to the maximum sentence in the range. We have reviewed the record on appeal and affirm the judgment of the trial court.

A Washington County jury convicted Russell Dean Long of first degree felony murder committed during the perpetration of aggravated child abuse and first degree felony murder committed during the perpetration of aggravated child neglect. The jury convicted Jessica Renee Adkins of first degree felony murder committed during the perpetration of aggravated child neglect. The trial court merged Defendant Long’s convictions and sentenced both of the defendants to serve life in the Tennessee Department of Correction. On appeal, Defendant Long asserts that: (1) there is insufficient evidence to support his convictions; (2) the trial court allowed the introduction of inadmissible hearsay evidence through the videotaped conversation between the defendants; and (3) the trial court erred by failing to exclude an autopsy photograph of the victim. Defendant Adkins asserts that: (1) there is insufficient evidence to support her conviction; and (2) the trial court improperly overruled her objection to the State’s use of a visual aid during closing arguments. After a thorough review of the record and applicable law, we conclude there exists no error in the judgments of the trial court. Accordingly, we affirm the trial court’s judgments.

The Petitioner, Bradley Mitchell West, Jr., appeals as of right from the Bedford County Circuit Court’s denial of his petition for post-conviction relief.  The Petitioner contends that he received ineffective assistance of counsel because trial counsel failed to locate and interview a potential witness.  Discerning no error, we affirm the judgment of the post-conviction court.

A Carroll County jury convicted appellant, Robert Joseph Harr, of attempted sexual battery. The trial court sentenced him to eleven months, twenty-nine days in the county jail and ordered him to serve forty-five days in confinement with the balance of his sentence to be served on probation. On appeal, appellant challenges the sufficiency of the evidence to sustain his conviction, the trial court’s denial of full probation, the trial court’s discovery rulings under Tennessee Rule of Criminal Procedure 16, and the State’s denial of his application for pretrial diversion. Discerning no error, we affirm the judgment of the trial court.

The defendant, Clyde Turner, appeals the revocation of his probation, arguing that the trial court abused its discretion by revoking his probation and ordering that he serve his original four-year sentence in the Department of Correction.  Following our review, we affirm the judgment of the trial court.

The trial court granted Defendants’ motion to dismiss Plaintiff’s claims for breach of contract, breach of fiduciary duty, fraudulent concealment, aiding and abetting breach of contract, common law tortious interference, statutory interference, and civil conspiracy. We affirm in part, reverse in part, and remand.

This is a termination of parental rights case focusing on Christopher S., Jr. (“C.J.”) and Lilly S., the minor children (“Children”) of Tawana S. (“Mother”) and Christopher S., Sr. (“Father”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on October 14, 2010. On September 22, 2011, DCS filed a petition to terminate the parental rights of both parents. Following a bench trial held on April 27, 2012, and July 11, 2012, the trial court granted the petition upon its finding, by clear and convincing evidence, that the parents had committed severe child abuse and were mentally incompetent to provide for the further care and supervision of the Children. The court further found, by clear and convincing evidence, that termination of Father’s and Mother’s parental rights was in the Children’s best interests. Father and Mother have appealed. We reverse the finding that Father and Mother were mentally incompetent to provide for the further care and supervision of the Children. We affirm the trial court’s judgment in all other respects, including the termination of Father’s and Mother’s parental rights on the statutory ground of severe child abuse.

Matthew W. Wambles ("the Petitioner") pleaded nolo contendere to one count of aggravated sexual battery and one count of sexual exploitation of a minor. Pursuant to the plea agreement, the trial court sentenced the Petitioner to concurrent terms of eight years’ incarceration. The Petitioner subsequently filed for post-conviction relief, alleging that he received ineffective assistance of counsel and that his pleas are constitutionally infirm. After a hearing, the post-conviction court denied relief, and this appeal followed. Upon our thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

This appeal is from an order of the trial court denying the appellant’s motion to waive all fines and costs related to the nolle prosequi of all charges in Hamblen County Criminal Court case number 03CR212. Because it is clear from the record that no court costs or fines were assessed against the appellant as a result of the nolle prosequi entered in the proceedings below, there appears to be no judgment of the trial court adverse to the appellant’s interests and, therefore, we lack jurisdiction to entertain this appeal.

Appellant, Billy Tate, was convicted of burglary of a business and theft over $1,000, and the trial court sentenced him to twelve years in the Tennessee Department of Correction. After filing a petition for post-conviction relief, he was granted a delayed appeal of his convictions. On appeal, he argues that the trial court erred by: (1) denying his motion to suppress a showup identification and the subsequent in-court identification by the same witness; (2) not declaring a mistrial when a witness testified that appellant had refused to give a statement; (3) allowing the State to introduce lay testimony regarding scientific evidence; and (4) denying his motion to suppress based on an illegal seizure. Following our review, we affirm the judgments of the trial court.

The defendant, Phillip Pack, appeals from his Campbell County Criminal Court jury conviction of second degree murder, claiming that the evidence was insufficient to support his conviction, that newly discovered evidence established his innocence, that the trial court erred by admitting certain evidence, and that the prosecutor made inappropriate remarks during closing argument. Because the evidence adduced at trial was insufficient to support the defendant’s conviction of second degree murder, the conviction is reversed, and the charge is dismissed.

The Petitioner, Erika Cienfuegos, appeals from the post-conviction court’s denial of her petition for post-conviction relief, contending that she received the ineffective assistance of counsel which, given that she was unmedicated for her mental illnesses during the plea submission hearing, led to her unknowingly entering a guilty plea.  Upon consideration of the applicable authorities and the record, we affirm the judgment of the post-conviction court.

The defendant, Jessica M. Myers, was indicted on one count of first degree (premeditated) murder of Jimmy Cutshall, three alternative counts of first degree (felony) murder of Jimmy Cutshall, and one count of attempt to commit first degree murder of Rhonda Cutshall. A jury found her guilty of the first four counts as charged and of the lesser-included offense of reckless endangerment on the fifth count. The trial court merged the felony murder convictions. The defendant was sentenced to life in prison for counts one and two, and she was sentenced to serve eleven months and twenty-nine days on count five, with all sentences to be served concurrently. On appeal, the defendant challenges the sufficiency of the evidence, an alleged defect in the indictment in count one, and the admission of certain post-mortem photographs as cumulative evidence at trial. Having reviewed the record, we affirm the judgments of the trial court.

The Petitioner, Troy Douglas Bartley, appeals the Sullivan County Criminal Court’s denial of post-conviction relief from his convictions of two counts of aggravated assault, Class C felonies, one count of delivery of cocaine within 1,000 feet of a school zone, a Class B felony, one count of possession of cocaine with intent to sell or deliver within 1,000 feet of a school zone, a Class A felony, one count of attempted first degree murder, a Class A felony, one count of retaliation for past action, a Class E felony, and two additional counts of aggravated assault, Class C felonies. Based on the guilty plea hearing transcript, the Petitioner pleaded guilty in case number S57,639, to two counts of aggravated assault, both of which were merged by the trial court, and received a three-year-sentence. In case number S58,333, the Petitioner pleaded guilty to delivery of cocaine within 1,000 feet of a school zone, count one, which merged with count two, possession of less than five-tenths of cocaine with intent to sell or deliver within 1,000 feet of a school zone, and received an eight-year sentence. In case number S58,374, the Petitioner pleaded guilty to attempted first degree murder, count one, retaliation for past action, count two, and two additional counts of aggravated assault, counts three and four, which the trial court merged with count two. In regard to case number S58,374, the Petitioner was sentenced to fifteen and four years, respectively. The trial court ordered “all counts in each case [to be served] concurrent[ly] but each of the cases [were] consecutive[,]”for an effective sentence of twenty-six years’ imprisonment. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that he entered involuntary and unknowing guilty pleas. 1 Upon review, we affirm the judgment of the post-conviction court.

The defendant, Jeremy Wendell Thorpe, appeals his Davidson County Criminal Court jury conviction of attempted sexual battery by an authority figure, claiming that the trial court erred by providing a jury instruction on attempted sexual battery by an authority figure as a lesser included offense of sexual battery by an authority figure and that the evidence was insufficient to support his conviction.  Discerning no error, we affirm.

I concur with the majority opinion, except I respectfully disagree with its affirming the imposition of forty-five days’ confinement. I do not believe the trial court justified confinement as opposed to full probation under the circumstances in this case. My view results from the trial court’s findings and the law that guides its determinations.

The issues in this divorce case are whether the trial court correctly ordered husband to pay wife $600 per month in transitional alimony for 36 months, child support in the amount of $253 per month, and $4,000 of the wife's attorneys fees, the latter as alimony in solido. At the time of trial, husband had been unemployed and actively seeking work for about one year. The trial court found that his income was zero. Wife did not argue that husband was voluntarily unemployed or underemployed, and the trial court made no such findings. The proof at trial establishes that many of the statutory factors supporting an award of alimony in futuro - including the need of the wife, duration of the marriage, i.e., 20 years, the parties' relative earning capacities, wife's contributions to the marriage as homemaker and parent, and wife's health - were demonstrated. Husband's current ability to pay, however, is quite limited because of his involuntary unemployment and zero income. Consequently, we modify the transitional alimony award to $50 per month, but designate it as alimony in futuro. The difference in husband's income, i.e., $1,191.66 per month, at the time his child support obligation was set and his income, i.e., zero, at time of trial likely supports a finding that there is a significant variance between the current support order of $253 and the amount of the proposed presumptive modified support order. Accordingly, we vacate the trial court's order refusing to modify his child support obligation and remand for a recalculation of child support. We affirm the judgment of the trial court in all other respects.