APPELLATE COURT OPINIONS

I concur in the results reached by the majority opinion. I write separately to express my opinion that the trial court erred by ruling that the evidence sought by Defendant via the subpoena would be irrelevant. The proposed evidence was never submitted at the pre-trial hearing. Thus, the trial court could only speculate as to what any evidence would reveal. However, any error was harmless in my opinion.

Andy F. Nunez, Defendant, and two co-defendants, Joseph Santillan and Daniela Cruz, were indicted for first degree murder, felony murder, attempted especially aggravated robbery, attempted aggravated robbery, and reckless endangerment after a Nashville visitor was shot and killed while walking with his friend in September of 2016. Prior to trial, the State entered into a use immunity agreement with co-defendant, Ms. Cruz. Her case was severed from Defendant’s and Mr. Santillan’s case and she ultimately testified for the State. Prior to trial, counsel for Defendant subpoenaed the ten most recent use immunity agreements in first degree murder cases where a testifying co-defendant’s indictment was severed and the case proceeded to final judgment. The State filed a motion to quash the subpoena. The trial court granted the motion. The case proceeded to trial. Based partly on co-defendant Cruz’s testimony, Defendant was convicted as charged. He received an effective sentence of life plus five years. After trial, Ms. Cruz entered into a plea agreement to a reduced charge. On appeal, Defendant argues that the trial court abused its discretion by granting the motion to quash the subpoena. After a review, we determine that the trial court did not abuse its discretion and we affirm the judgments of the trial court.

In this consolidated, interlocutory appeal, we review the order of the trial court granting the motions of the defendants, Jennifer Langley and James Broce, to dismiss the drug-free zone enhancement alleged in their presentments. In reaching its conclusion, the trial court determined that the Mark Vance Memorial Greenway located in Sullivan County, Tennessee was not a public park and in turn, was not a designated drug-free zone under the Drug-Free School Zone Act. The trial court’s finding rendered the enhancement provision of the Act inapplicable to the defendants’ presentments. Upon our review, we conclude the trial court erred in dismissing the enhancement alleged in the presentments because the determination of whether the Mark Vance Memorial Greenway is a public park as contemplated by the Drug-Free School Zone Act is a question of fact to be decided by the finder of fact. Accordingly, we reverse the order of the trial court.

Following a bench trial, the Petitioner, Curtis Johnson, Jr., was found guilty of three counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. The trial court imposed an effective sentence of twenty-four years. This court affirmed the trial court’s judgments on appeal. State v. Curtis Johnson, Jr., No. W2016-02439-CCA-R3-CD, 2018 WL 324455 (Tenn. Crim. App., at Jackson, Jan. 5, 2018), no perm. app filed. The Petitioner timely filed a post-conviction petition, alleging that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, concluding that the Petitioner had not proven Counsel was deficient or shown prejudice. On appeal, the Petitioner maintains his ineffective assistance of counsel claims. After review, we affirm the post-conviction court’s judgment.

The Petitioner, Kelvin A. Lee, appeals as of right from the Lake County Circuit Court’s summary dismissal of his petition for writ of habeas corpus, in which he contended that his life without parole sentence for his first degree felony murder conviction was illegal because it was imposed for a crime he committed as a juvenile. The Petitioner contends that the petition stated a cognizable claim for habeas corpus relief. Discerning no error, we affirm the judgment of the habeas corpus court.

The Defendant, William Brian Robinson, was convicted by a jury of second degree murder, for which he received a sentence of seventeen years. See Tenn. Code Ann. § 39-13-210. On appeal, the Defendant argues that (1) the trial court erred by denying his request to present evidence that the State had previously pursued two theories of guilt that were inconsistent with its theory at trial; (2) there was insufficient evidence to support his conviction, specifically, challenging the mens rea element of knowing; (3) the trial court erred by allowing a witness to testify about blood spatter evidence when that witness had not been qualified as an expert; and (4) the cumulative effect of these errors requires a new trial. After a thorough review of the record and applicable authorities, we reverse the judgment of the trial court and remand the case for a new trial on the charge of second degree murder, during which the Defendant shall be permitted to present evidence of the State’s previous theories of guilt.

In 2007, a Shelby County jury convicted the Petitioner, Mario Bateman a/k/a Mario Woods, of first-degree premeditated murder and sentenced him to life in prison. This court affirmed the conviction. State v. Mario Bateman a/k/a Mario Woods, No. W2007-00571-CCA-R3-CD, 2008 WL 4756675, at *1 (Tenn. Crim. App., at Jackson, Oct. 28, 2008), perm. app. denied (Tenn. Mar. 23, 2009). The Petitioner then unsuccessfully filed, in turn, a petition for post-conviction relief, a writ of error coram nobis, and a federal habeas corpus petition. He then filed a petition for a writ of error coram nobis at issue in this case, alleging that he had newly discovered evidence in the form of an affidavit from the victim’s father asserting that the victim was “violent, aggressive, and a bully.” He contended that he may have been convicted of a lesser-included offense had the jury heard this testimony and asked that the lower court toll the statute of limitations. The lower court summarily dismissed the petition for a writ of error coram nobis, finding that the Petitioner could have discovered the evidence sooner, that the evidence was cumulative to the evidence presented at trial, and that the Petitioner had not shown that the evidence might have affected the outcome of the trial. The Petitioner filed this appeal. After review, we affirm the lower court’s judgment.

This case involved a petition to modify the parties’ parenting plan to change the primary residential parent. The father sought to be designated as the primary residential parent of his minor child, alleging, among other things, that the child’s sibling was violent, that the mother had moved to a new county and enrolled the child in a new school, that he never received notice from the mother regarding the child’s medical appointments, and that the mother intentionally interfered with his and the child’s relationship. Because mother was not listed in father’s response to mother’s interrogatory—which specifically asked for a list of all potential trial witnesses—the trial court prohibited father’s counsel from calling mother as a witness during father’s case-in-chief. The trial court, however, allowed father to submit mother’s deposition as an exhibit and also allowed father to call mother to testify as to events that had occurred since her deposition had been taken. At the close of father’s proof, mother’s counsel moved for a directed verdict, which the trial court granted, finding that none of the incidents relied upon by father constituted a material change in circumstances. Construing the trial court’s order as if it were an order granting a motion for involuntary dismissal, and concluding that barring father from calling mother as a witness in his case-in-chief was harmless error by the trial court, we affirm.

The Petitioner, Michael Cory Halliburton, appeals the denial of his petition for postconviction relief, asserting that he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

The Petitioner, Robert Wayne Garner, appeals as of right from the Giles County Circuit Court’s summary dismissal of his petition for writ of habeas corpus, in which he contended that his life sentence for his first degree felony murder was illegal because the statute governing his release eligibility does not allow for the possibility of parole. The Petitioner contends that the petition stated a cognizable claim for habeas corpus relief. Discerning no error, we affirm the judgment of the habeas corpus court.

Defendant, Ramon Luis Hernandez, Jr., pled guilty to one count of aggravated sexual exploitation of a minor and one count of sexual exploitation of a minor involving over 50 images. Defendant agreed to consecutive sentencing, with the trial court to determine the length and manner of service of the sentences after a sentencing hearing. The trial court sentenced Defendant to five years for each offense for an effective sentence of ten years of incarceration. After a review, we conclude that the trial court sentenced Defendant to a sentence within the range for each conviction and followed the proper sentencing procedure. Accordingly, the trial court did not abuse its discretion and the judgments of the trial court are affirmed.

The Appellant, Jeffrey Wayne Haithcote, pled guilty in the Bedford County Circuit Court to two counts of selling heroin and one count of possessing heroin with intent to sell, Class B felonies. As a condition of his pleas, he reserved certified questions of law concerning whether the trial court erred by denying his motion to suppress the search of his residence because the affidavit underlying the search warrant did not establish probable cause. Upon review, we affirm the trial court’s denial of the motion to suppress.

This is an appeal of a suit contesting the validity of a Last Will and Testament. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

A mother appeals the termination of her parental rights. The original petition, which asserted multiple grounds for termination, was filed in June of 2016. At the time, the ground of abandonment for failure to visit and support required the petitioners to prove the parent’s failure to visit and support the child was, inter alia, willful. Prior to trial, the petitioners filed an amended complaint to assert, inter alia, the ground of abandonment based on the amended statute, which did not require proof of willfulness. When the case went to trial, the court based its ruling on the grounds asserted in both the original and amended petition, considered two different four-month periods for the ground of abandonment—one preceding the filing of the original petition and one preceding the filing of the amended
petition—and determined that all of the alleged grounds had been proven and that termination of the mother’s parental rights was in the child’s best interest. This appeal followed. We have determined that the petitioners failed to prove the ground of failure to manifest an ability and willingness to assume custody or financial responsibility of the child. We also hold, inter alia, that the trial court erred in considering two different fourmonth periods for the ground of abandonment because the claims asserted in the amended petition arose out of the same conduct as that set forth in the original petition; thus, the amendment related back to the date of the original pleading. Nevertheless, the record contains clear and convincing evidence to support the trial court’s determination that the petitioners proved grounds based on the mother’s conduct during the relevant period preceding the filing of the original petition. We also find the record contains clear and convincing evidence to support the trial court’s determination that termination of the mother’s parental rights is in the child’s best interest. Having affirmed the trial court’s determination that two grounds were established and that termination of the mother’s parental rights is in the child’s best interest, we affirm the termination of the mother’s parental rights.

This appeal arises from a dispute over vacation benefits. The plaintiffs allege that their employer deprived them of earned vacation time when it changed its vacation policy. The plaintiffs moved for class certification, and the defendant filed a motion for summary judgment. After hearing both motions, the trial court dismissed the plaintiffs’ complaint with prejudice and denied the motion for class certification. The plaintiffs appeal. We affirm the trial court’s ruling.

The sole issue in this appeal concerns the trial court’s decision to classify residential property as the wife’s separate asset. The trial court made its decision upon finding the wife purchased the property prior to the marriage, titled it in her name only, and paid the mortgage and expenses to maintain the property with money she earned during the marriage and with only occasional assistance from the husband. This appeal followed. The husband contends the property should have been classified as a marital asset because the couple resided there as husband and wife for ten years; the money the wife earned during the marriage was marital property; and he made substantial contributions to maintaining the property and paying expenses. We have determined that the funds the wife used to pay the mortgage and expenses were marital assets because they were earned during the marriage. Moreover, the couple used the property as their marital residence during their ten-year marriage, and the husband provided some, albeit modest, assistance in maintaining the property. Accordingly, we reverse the decision of the trial court and hold that the property shall be classified as a marital asset. Based on this decision, we vacate the division of the marital estate and remand for the trial court to determine the value of the marital assets, equitably divide those assets, and enter judgment accordingly. The husband also contends the trial court’s discovery sanction against the wife was insufficient. Finding no error with this discretionary decision, we affirm the sanction imposed by the trial court.

Petitioner, Derrick D. Carr, was indicted by a Wilson County grand jury for two counts of first-degree murder, one count of attempted first-degree murder, one count of especially aggravated robbery, and two counts of reckless endangerment involving a deadly weapon. Pursuant to a negotiated plea agreement, Petitioner pled guilty to second-degree murder and attempted first-degree murder and received concurrent twenty-five-year prison sentences. Petitioner subsequently filed a timely pro se petition for post-conviction relief claiming that he had received ineffective assistance of counsel and that he had newly discovered evidence from one of the victims. After an evidentiary hearing, the post-conviction court denied the petition. After a careful review of the record, we affirm.

Defendant, Demarius Jerome Pitts, pleaded guilty to possession of a Schedule IV drug with intent to sell or deliver. After denying judicial diversion, the trial court sentenced Defendant to serve three years to be suspended to supervised probation. On appeal, Defendant contends that the trial court erred when it denied his request for judicial diversion. After review, we affirm the judgment of the trial court.

The Defendant, Charles Thomas Johnson, was convicted by a Lincoln County Circuit Court jury of possession of heroin with the intent to sell, possession of heroin with the intent to deliver, possession with the intent to sell 0.5 gram or more of cocaine, and possession with the intent to deliver 0.5 gram or more of cocaine, Class B felonies. See T.C.A. § 39-17-417 (2018). After the appropriate merger, the trial court imposed consecutive terms of twelve years for possession with the intent to sell heroin and eight years for possession with the intent to sell cocaine, for an effective twenty years’ confinement. The trial court ordered the Defendant to serve his effective sentence consecutively to a conviction in an unrelated case. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by denying his motion to dismiss pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), based on lost or destroyed evidence, and (3) the trial court erred by denying his request for alternative sentencing and by imposing consecutive service. We affirm the judgments of the trial court.

On September 3, 2019, Vaughn Harris, Petitioner, filed pro se petitions for post-conviction relief in three Davidson County cases. The petitions were filed years after the one-year statute of limitations in Tennessee Code Annotated section 40-30-102(a) had expired. The post-conviction courts summarily dismissed the petitions as untimely. Petitioner appealed claiming that the statutory exceptions in Tennessee Code Annotated section 40-30-102(b) provided jurisdiction for the post-conviction courts to consider the petitions and/or that he was entitled to due process tolling of the statute of limitations. Pursuant to Tennessee Rule of Appellate Procedure 16(b), we ordered the three appeals to be consolidated because they involved “common questions of law and/or common facts.” After review of the record and applicable law, we affirm the summary dismissal in all three cases.

Donte Anton Davis, Defendant, was indicted by a Coffee County grand jury for violation of the Sex Offender Registry. Defendant entered a guilty plea, and the trial court sentenced Defendant as a career offender to serve six years in confinement. Defendant filed a timely notice of appeal and argues that his sentence was excessive and that the trial court failed to include specific findings to support its denial of the mandatory minimum sentence. The State argues that the trial court exercised proper discretion and sentenced Defendant appropriately. After a thorough review of the record, we find no error in the judgment of the trial court.

This is the second appeal by a father of the termination of his parental rights to his two minor children. The trial court determined that termination of the father’s rights was in the best interest of the children after finding he failed to manifest an ability and willingness to assume custody of the children and abandoned them by engaging in conduct that exhibited a wanton disregard for their welfare. In the first appeal, we vacated the judgment of the trial court because its findings of fact failed to comply with the mandate in Tenn. Code Ann. § 36-1-113(k) and remanded for the trial court to make additional findings of fact on two grounds—abandonment by wanton disregard and failure to manifest an ability and willingness to assume custody of or financial responsibility for the children—and on whether termination of the father’s parental rights was in the children’s best interests See In re Nakayia S., No. M2017-01694-COA-R3-PT, 2018 WL 4462651, at *5–6 (Tenn. Ct. App. Sept. 18, 2018). In this appeal, the father contends the court improperly based its decision on one child’s out of court allegations of abuse, and he asserts that he manifested ability and willingness to assume custody by complying with the permanency plan requirements. We have determined that the child’s statements were properly admitted under Tennessee Rule of Evidence 803, and the preponderance of the evidence is not against the trial court’s findings, which amount to clear and convincing evidence of the elements necessary to terminate the father’s parental rights. Accordingly, we affirm the termination of the father’s parental rights.

In this parental termination case, the trial court found two statutory grounds for termination of a father’s parental rights: severe child abuse and failure to manifest an ability and willingness to assume custody. The trial court also found that termination of the father’s parental rights was in his child’s best interest. Because the record contains clear and convincing evidence to support the grounds for termination and the best interest determination, we affirm. 

This case involves alleged child abuse by the mother’s paramour. After receiving a referral for potential child abuse, the Department of Children’s Services filed a dependency and neglect petition seeking injunctive relief, an ex parte order, and to transfer temporary legal custody of two minor children. After a hearing on the petition, the juvenile court found that the paramour committed severe child abuse. The paramour appealed to the circuit court. The circuit court also found there was clear and convincing evidence to show the paramour committed severe child abuse and that the abused child was dependent and neglected. We affirm the circuit court’s findings and remand.

This case involves a lease that allowed a restaurant to operate inside a hotel building. During the term of the lease, the original
owner-lessor sold the hotel building to a successor, who then sold the hotel building to the appellant. The appellant tried to “buy out” the tenant and cancel the lease, but the tenant refused. The appellant proceeded with demolition of the interior of the hotel. Thereafter, the tenant experienced a series of problems with the building, including major water leaks, lack of climate control, and other problems, which led the tenant to file this lawsuit. After a three-day bench trial, the trial court concluded that the appellant maintained the premises in an uninhabitable state, amounting to a constructive eviction of the tenant. The trial court found that the appellant repeatedly and intentionally disturbed the tenant’s quiet enjoyment of the premises through its failure to maintain climate control in the hotel, failure to maintain windows and doors in the building, and allowing the building to be closed by Shelby County Code Enforcement for approximately six months. It found that the appellant engaged in extreme, outrageous, and intentional conduct intended to destroy the tenant’s business and drive the tenant to vacate the premises, constituting an unlawful ouster of the tenant and retaliatory eviction. The trial court calculated the tenant’s lost profits for the remaining term of the lease at $595,025. Due to the extremity of the appellant’s actions, the trial court also awarded the tenant punitive damages. On appeal, the appellant does not challenge the trial court’s findings regarding liability on the underlying causes of action. It only challenges the calculation of the award of lost profits and the award of punitive damages. For the following reasons, we affirm the award of lost profits as modified but vacate and remand for further proceedings regarding punitive damages.