APPELLATE COURT OPINIONS

The Defendants, Octavius Flynn and Derrick Benson, appeal their convictions for second degree murder and their respective sentences of twenty-five and twenty-four years. On appeal, the Defendants argue, either individually or collectively, that (1) the trial court erred in denying their motions to sever; (2) a witness’s identification of Mr. Flynn in a photographic array was unreliable and should have been suppressed; (3) the evidence was insufficient to support the convictions; (4) the trial court erred in denying Mr. Flynn’s motion to dismiss due to spoliation of evidence; (5) the jury failed to follow the trial court’s instructions and improperly compromised on a verdict of second degree murder; and (6) the sentences are excessive. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

The Defendant, Ronald Turner, was convicted of three counts of attempted second degree murder when he fired a single shot through a glass door at his child, the mother of his child, and her roommate. The Defendant was also convicted of three counts of employing a firearm in the commission of a dangerous felony and one count of unlawful possession of a handgun with the intent to go armed in a public place where at least one person is present. The Defendant’s convictions for the three counts of attempted second degree murder and the conviction for possession of a handgun were enhanced after the jury found that the gang enhancement statute applied. The Defendant appeals, challenging the sufficiency of the evidence and the constitutionality of the gang enhancement statute. We conclude that the evidence is insufficient to support two of the convictions for attempted second degree murder, and we reverse these convictions and the weapons offenses predicated on them. The Defendant raised the constitutional argument for the first time in the motion for a new trial, and the State argues that the issue is waived. We conclude that the statute is unconstitutional and that the Defendant is entitled to relief from the gang enhancement applied to his sentences. We affirm the judgments of the trial court in all remaining respects.

Henry Epps (“the Petitioner”) entered a best interest plea to six counts of sexual exploitation of a minor; the remaining nine counts of sexual exploitation of a minor were dismissed per the negotiated plea agreement.  The Petitioner received an effective sentence of eight years with release eligibility after service of 100% of the sentence in the Department of Correction.  The Petitioner filed an original and an amended petition for post-conviction relief.  After an evidentiary hearing, the post-conviction court denied relief.  On appeal, the Petitioner argues that trial counsel’s performance was deficient in failing to subpoena the Petitioner’s computer forensic expert to testify at trial and in failing to inform the Petitioner until the Friday before his Monday trial that the expert had not been subpoenaed.  Petitioner claims that absent trial counsel’s deficient performance, the Petitioner would have proceeded to trial, and therefore the Petitioner’s best interest plea was entered involuntarily.  After a thorough review of the record and applicable case law, we reverse and remand for a new post-conviction hearing.

A Davidson County jury convicted the Defendant, Dequan Hasani Bertrand, of aggravated robbery, aggravated burglary, and employment of a firearm during the commission of a dangerous felony.  The jury acquitted the Defendant of one count of aggravated rape and was unable to reach a verdict as to two other counts of aggravated rape.  The trial court sentenced the Defendant to a total effective sentence of twenty-four years.  On appeal, the Defendant contends that: (1) the trial court erred when it admitted the victim’s identification of him; (2) the evidence is insufficient to sustain his convictions; and (3) the trial court erred when it sentenced him to the maximum sentences within his range and ordered his sentences to run consecutively.  After review, we affirm the trial court’s judgments.

The Defendant, Michael Dewayne Hall, was convicted by a Blount County Jury of sale or delivery of cocaine under 0.5 grams in the drug-free zone of a public park, a Class C felony, and sale or delivery of cocaine over 0.5 grams in the drug-free zone of a public park, a Class B felony. As a career offender, he received an effective sentence of thirty years in the Tennessee Department of Correction. On appeal, the Defendant claims: (1) the trial court improperly admitted a map into evidence at trial; (2) the trial court improperly denied his motion to dismiss the indictment; (3) the evidence is insufficient to sustain his convictions; and (4) the trial court improperly acted as thirteenth juror to approve the jury’s verdict. We conclude that the trial court properly admitted the map, denied the motion to dismiss, and acted as thirteenth juror, and that the evidence is sufficient to sustain the Defendant’s convictions. However, after a plain error review, the duplicitous nature of the Defendant’s convictions for “sale or delivery” of cocaine constitutes reversible error and violates the Defendant’s fundamental and substantial right to a unanimous jury verdict. Accordingly, we reverse, vacate, and dismiss the Defendant’s convictions.

The Defendant, Juan Cerano, was convicted of rape of a child and aggravated sexual battery. The trial court merged the aggravated sexual battery conviction into the rape of a child conviction and sentenced the Defendant to thirty years in prison. On appeal, he contends that the trial court erred by denying his motion to produce records from the Department of Children’s Services regarding prior allegations of abuse after an in camera inspection. After reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

The Defendant, Christopher Johnson, was convicted by a Hardin County Jury of possession of mushrooms with intent to manufacture, deliver, or sell, possession of mushrooms, possession of drug paraphernalia, and unlawful possession of a weapon by a convicted felon. As a Range II, multiple offender, he received an effective sentence of fifteen years in the Tennessee Department of Correction. On appeal, the Defendant claims: (1) the evidence is insufficient to sustain his conviction of unlawful possession of a weapon by a convicted felon; (2) the trial court improperly denied his motion to suppress; (3) the trial court improperly admitted a redacted audio recording of the Defendant’s interview with police at trial; and (4) the State committed prosecutorial misconduct by failing to provide discoverable evidence and improperly quoting a witness during closing argument. Upon review, we affirm the judgments of the trial court but remand for entry of a corrected judgment form as to count four reflecting that the Defendant was found not guilty of possession of marijuana.

Plaintiff filed this pro se action against a hospital and members of its medical staff for injuries sustained when she was allegedly beaten and misdiagnosed while receiving medical treatment. The trial court dismissed plaintiff’s complaint based on her failure to comply with procedural requirements of the Tennessee Health Care Liability Act (“THCLA”). On appeal, plaintiff contends that she was not required to comply with the THCLA’s procedural requirements because her complaint did not assert health care liability claims. Having reviewed the complaint, we conclude that plaintiff’s claims related to the alleged misdiagnosis are health care liability claims, while her claims related to the alleged beatings are not. We affirm dismissal of plaintiff’s health care liability claims but reverse dismissal of her non-health care liability claims.

Appellant brought a pro se action against several medical providers for injuries sustained when she was allegedly beaten during medical procedures. The trial court dismissed the complaint, under Tennessee Rule of Civil Procedure 12.02, for failure to comply with the procedural requirements of the Tennessee Health Care Liability Act (THCLA). On appeal, Appellant contends that she was not obligated to comply with the THCLA’s procedural requirements because her claim was based in tort and did not assert a health care liability claim. After reviewing the complaint, we conclude that it asserts several distinct claims, some of which are health care liability claims and some are not. We, therefore, affirm the trial court’s dismissal of the health care liability claims, but reverse the trial court’s grant of Appellees’ motions to dismiss the non-health care liability claims.

The first referral in this matter occurred on October 31, 2014. It involved “drug exposure of [Damien and his older sibling].” On December 15, 2014, there was a second referral to DCS, again for “drug exposure.” Methadone and methamphetamine were involved in the children’s care, or, more aptly, their non-care.

This is a termination of parental rights case. Father/Appellant appeals the termination of his parental rights to the minor child on the grounds of: (1) abandonment by willful failure to provide a suitable home and willful failure to support; (2) substantial noncompliance with the requirements of the permanency plan; and (3) persistence of the conditions that led to the child’s removal from Father’s home. Father also appeals the trial court’s finding that termination of his parental rights is in the child’s best interest. Because Appellee has failed to meet its burden to prove, by clear and convincing evidence, any of the grounds for termination of Father’s parental, we reverse and remand.

Appellant purchased a vehicle, owned by Appellee, from an auto auction company. After the purchase, Appellant discovered that the vehicle’s engine was defective, a fact that was not disclosed prior to sale. Appellant sought rescission of the purchase against Appellee but did not name the auto auction company as a defendant. Because the rescission and warranty of merchantability statutes, Tenn. Code Ann. §§ 47-2-608 and 47-2-314 require privity of contract between the buyer and the seller, and because the automobile auction statute, Tenn. Code Ann. § 62-19-128 clearly identifies the auction company as the seller of the vehicle, we conclude that Appellant did not have a cause of action for rescission against Appellee. Affirmed and remanded.

This interlocutory appeal concerns whether the circuit court may sever a termination of parental rights proceeding from an adoption proceeding, which were filed together in the circuit court, and transfer only the termination of parental rights proceeding to the juvenile court in another county. Reversed and remanded.

The Defendant, Jacqueline Allen, was found guilty by a Humphreys County Circuit Court jury of assault, a Class A misdemeanor, and possession of a firearm by a convicted felon, a Class E felony. See T.C.A. §§ 39-13-101 (2010) (amended 2013), 39-17-1307 (2010) (amended 2012, 2014). The trial court sentenced the Defendant as Range I, standard offender to an effective two years’ probation. On appeal, the Defendant contends that the trial court erred by failing to inquire about a violation of the sequestration rule pursuant to Tennessee Rule of Evidence 615. We conclude that the appeal should be dismissed because the Defendant’s motion for a new trial was untimely.

This is an appeal by the appellant, Amanda M.-B., from an order terminating her parental rights to her minor child. The order terminating the appellant's parental rights was entered on December 12, 2016. The Notice of Appeal was not filed until February 13, 2017, more than thirty (30) days from the date of entry of the final order. The Attorney General, on behalf of the appellee, Tennessee Department of Children's Services, has filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the record confirms that the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

The Appellant, David Scott Hall, was convicted in the Davidson County Criminal Court of attempted especially aggravated sexual exploitation of a minor, a Class C felony, and sentenced to four years to be served as one year in confinement and the remainder on supervised probation.  On appeal, the Appellant contends that the evidence is insufficient to support the conviction, that the trial court erred by allowing an expert witness to give irrelevant and highly prejudicial testimony, that he is entitled to coram nobis relief, that his right to a speedy trial was violated, that the trial court erred by allowing the State to introduce evidence without showing a proper chain of custody, that the trial court erred by allowing the State to play only a portion of a controlled telephone call to the Appellant, that the trial court erred by allowing the victim to testify about habit, that the trial court erred by allowing the State to introduce into evidence a letter supposedly written by the Appellant, and that the trial court erred by allowing the State to make improper closing arguments.  Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence is sufficient to support the conviction, that the trial court erred by allowing a witnesses to give irrelevant testimony but that the error was harmless, that the Appellant is not entitled to coram nobis relief, and that his right to a speedy trial was not violated.  Finding no plain error as to the remaining issues, we affirm the judgment of the trial court.

The Appellee, Thomas Braden, was indicted for possession of cocaine, possession of marijuana, and possession of Alprazolam, all misdemeanors.  He filed a motion to suppress the evidence, arguing that the affidavit in support of the search warrant for the home in which the drugs were found was defective because it failed to establish ongoing criminal activity at the residence, and the Maury County Circuit Court granted the motion.  The State appealed to this court, and we concluded that the trial court properly granted the motion to suppress.   The Tennessee Supreme Court granted the State’s application for permission to appeal and remanded the case to this court for reconsideration in light of the court’s recent opinion in State v. Jerry Lewis Tuttle, ___ S.W.3d ___, M2014-00566-CCA-R3-CD, 2015 WL 5812945 (Tenn. Apr. 5, 2017), which overruled State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989), and adopted a totality-of-the-circumstances analysis for determining whether an affidavit establishes probable cause for issuance of a search warrant.  Upon reconsideration, we again conclude that the trial court properly granted the motion to suppress.

A billboard company and the owners of the property upon which two billboards sit (“the defendants”) appeal the decision of the trial court holding that the board of zoning appeals erred in issuing building permits to the defendants to allow them to replace static display billboards with digital display billboards. Because we agree with the trial court’s conclusion that the ordinance at issue is a lighting regulation, not a zoning regulation, and that Tenn. Code Ann. § 13-7-208 therefore does not apply, we affirm the trial court’s decision.

In this action regarding injury allegedly caused by an emergency medical technician in the course of rendering medical aid, the trial court determined that the plaintiff’s claims were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the claims with prejudice based on the plaintiff’s failure to file a certificate of good faith pursuant to Tennessee Code Annotated § 29-26-122. The plaintiff has appealed, conceding that his claims sounded in health care liability but asserting that they should not have been dismissed with prejudice because a certificate of good faith was not required. Following our review of the complaint, we conclude that the plaintiff’s claims were subject to the common knowledge exception such that a certificate of good faith was not required pursuant to Tennessee Code Annotated § 29-26-122. We therefore reverse the trial court’s dismissal with prejudice and remand this matter to the trial court for entry of an order dismissing the plaintiff’s claims without prejudice based upon his failure to provide pre-suit notice.

The maternal grandmother of three children filed a petition to terminate the parental rights of the father of each child on various grounds and to allow the grandmother to adopt the children; the children’s mother joined in the petition for the purpose of consenting to the termination of her parental rights and to the adoption. Two of the fathers were incarcerated at the time of the proceeding and the father of the third child was unknown. The trial court terminated the rights of the father of one child on the grounds of abandonment by engaging in conduct prior to his incarceration that exhibited a wanton disregard for the welfare of his child and on the ground that the father had been convicted of an offense and was under a sentence of more than ten years; the court terminated the rights of the father of another child on the grounds of abandonment by failure to support and visit his child within the four months preceding his incarceration and by engaging in conduct prior to his incarceration which exhibited a wanton disregard for the welfare of his child. The fathers of these children appeal. We reverse the judgment terminating the parental rights of one father on the ground of abandonment by failure to support and the judgment terminating the rights of the other father on the ground of abandonment by engaging in conduct evidencing a wanton disregard for his child; in all other respects, the judgments terminating the parental rights of the fathers are affirmed.

The defendant, Bobby Joe Campbell, appeals his Sullivan County Criminal Court jury conviction of second offense driving under the influence (“DUI”), arguing that the trial court committed plain error by failing to declare a mistrial following certain comments from a member of the jury, that the evidence was insufficient to support his conviction, and that the sentence is excessive. We affirm the judgment of the trial court but remand the case for the entry of a corrected judgment that reflects the 180-day period of confinement ordered by the trial court.

A jury convicted the defendant of the premeditated first degree murder of his girlfriend, who was the mother of his three children. Tenn. Code Ann. § 39-13-202(a)(1) (2014). The jury also found the defendant guilty of initiating a false report concerning her disappearance and of abuse of her corpse, based on his sawing off her head, hands, and feet and throwing the remainder of her body over a bridge in Mississippi. See Tenn. Code Ann. § 39-16-502 (2014); id. § 39-17-312(a). At the conclusion of a separate sentencing hearing on the first degree murder conviction, the jury imposed the death sentence, finding that the prosecution had proven two statutory aggravating circumstances beyond a reasonable doubt, id. § 39-13-204(i)(2), (13), and had established that these aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt, id. § 39-13-204(g). For the remaining convictions, the trial court imposed consecutive sentences of twelve and six years, respectively, and ordered these sentences served consecutively to the death penalty. The defendant appealed, raising numerous issues, and the Court of Criminal Appeals affirmed his convictions and sentences. State v. Hawkins, W2012-00412-CCA-R3-DD, 2015 WL 5169157 (Tenn. Crim. App. Aug. 28, 2015). The case was thereafter automatically docketed in this Court for review, as required by statute, Tenn. Code Ann. § 39-13-206(a)(1), (c)(1). We hold that: (1) the defendant’s sentence of death was not imposed in an arbitrary fashion; (2) the evidence supports the jury’s findings that the aggravating circumstances were proven beyond a reasonable doubt and that these aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt; and (3) the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant. We also hold that: (1) admission of the defendant’s statements was harmless beyond a reasonable doubt; (2) the trial court did not abuse its discretion by refusing to allow the defendant to enter guilty pleas to the noncapital offenses pursuant to Tennessee Rule of Criminal Procedure 11(b) at the beginning of trial, after the jury had been sworn; (3) the trial court did not err by admitting testimony about the victim’s threats to call the police about the defendant’s conduct as this testimony was non-hearsay; (4) the trial court did not err by admitting the victim’s application for an order of protection against the defendant, pursuant to the forfeiture by wrongdoing exception to the hearsay rule; (5) the trial court did not violate Tennessee Rule of Evidence 404(b) by permitting the defendant’s children to testify about his acts of violence and sexual abuse because this testimony was offered to prove motive and premeditation; and (6) any error in the prosecutorial rebuttal argument was not so improper or inflammatory as to prejudice the defendant. Accordingly, we affirm the judgments of the Court of Criminal Appeals and the trial court upholding the defendant’s convictions and sentences. With respect to issues not specifically addressed herein, we affirm the decision of the Court of Criminal Appeals and include relevant portions of the intermediate appellate court’s decision in the appendix to this opinion.

I concur fully with the Court’s opinion except for the analysis regarding the proportionality review. In 1997, this Court narrowed the scope of the proportionality review required by Tennessee Code Annotated section 39 13 206(c)(1)(D) by limiting its consideration to only those cases in which the death penalty had been sought. State v. Bland, 958 S.W.2d 651, 666 (Tenn. 1997). A majority of this Court reaffirmed this truncated approach in State v. Pruitt, 415 S.W.3d 180, 217 (Tenn. 2013). In Pruitt, I joined Justice William C. Koch, Jr. in dissenting from the Court’s decision to continue following the Bland approach, as it improperly narrows the proportionality review required by Tennessee Code Annotated section 39 13 206(c)(1)(D). Pruitt, 415 S.W.3d at 230 (Koch and Lee, JJ., concurring and dissenting). We determined that the Court should return to its pre-Bland proportionality analysis by considering “all first degree murder cases in which life imprisonment or a sentence of death has been imposed” and focusing on whether the case under review more closely resembles cases that have resulted in the imposition of the death penalty than those that have not. Id. at 230-31 (Koch and Lee, JJ., concurring and dissenting).

In this divorce action, the trial court valued and allocated the parties’ marital assets. The court also awarded the wife alimony in futuro in the amount of $1,800 per month while awarding the wife attorney’s fees as alimony in solido in the amount of $35,710. The husband has appealed. Discerning no error in the trial court’s marital property division, we affirm that distribution. Furthermore, we affirm the award of alimony in futuro and attendant life insurance requirement. We modify the trial court’s award of attorney’s fees to the wife to the amount of $29,060. The trial court’s judgment is affirmed in all other respects.

In this divorce action, the chancery court named Father the primary residential parent of the parties’ child. During the pendency of this appeal, Mother filed a dependency and neglect petition in juvenile court, and the juvenile court found the child dependent and neglected and awarded custody to Mother. We, therefore, remand this case to the chancery court to reconsider its decision in light of the juvenile court’s order.