APPELLATE COURT OPINIONS

 Marshall County jury convicted the Petitioner, Rickey Allen Hickman, of one count of rape of a child and three counts of aggravated sexual battery.  The trial court sentenced the Petitioner to a total effective sentence of forty-seven years of incarceration.  On appeal, this Court affirmed the Petitioner’s convictions.  State v. Rickey Allan Hickman, No M2013-02390-CCA-R3-CD, 2014 WL 4557626 (Tenn. Crim. App., at Nashville, Sept. 16, 2014), perm. app. denied (Tenn. Jan. 16, 2015).  The Petitioner filed a petition for post-conviction relief alleging that his trial counsel had been ineffective.  The post-conviction court held a hearing after which it denied the petition.  On appeal, the Petitioner maintains that his trial counsel was ineffective for failing to present a defense asserting that the victim was raped by a person other than the Petitioner.  After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

A Davidson County Criminal Court Jury found the Appellant, Montez Deontay Ridley, guilty of aggravated robbery, a Class B felony.  The trial court imposed a sentence of nine years.  On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction.  Specifically, the Appellant contends that he was not at the scene of the crime, that no forensic evidence placed him at the scene, and that it was illogical that anyone would perpetrate the crime in such close proximity to the police.  The Appellant also contends that the victims were unable to identify him from a photographic lineup.  Finally, the Appellant contends that his confession was the result of lies told by the police.  Upon review, we affirm the judgment of the trial court.

A Benton County jury convicted the Defendant of one count of rape of a child and one count of aggravated sexual battery as a lesser-included offense of a second count of rape of a child. The trial court sentenced him to thirty-five years, to be served at 100%, for the rape of a child conviction and to a concurrent sentence of ten years for the aggravated sexual battery conviction. On appeal, the Defendant contended that: (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred when it instructed the jury that aggravated sexual battery was a lesser-included offense of rape of a child; and (3) the trial court erred when it sentenced him. After review, we concluded that aggravated sexual battery was not a lesser-included offense of rape of a child. State v. David Alan Corbitt, No. W2015-01834-CCA-R3-CD, 2016 WL 3952017 (Tenn. Crim. App., at Jackson, July 19, 2016), Tenn. R. App. P. 11 application granted (Tenn. Oct. 20, 2016) . As such, we held that the trial court erred when it instructed the jury. We, therefore, vacated the Defendant's conviction for aggravated sexual battery but affirmed his conviction and sentence for rape of a child. On October 20, 2016, the Tennessee Supreme Court granted Defendant's application for permission to appeal and remanded the case to this court for reconsideration in light of the supreme court's recent opinion in State v. Howard, No. E2014-01510-SC-R11-CD, __ S.W.3d __, 2016 WL 5933430 (Tenn. Oct. 12, 2016). Upon reconsideration in light of Howard, we conclude that aggravated sexual battery is a lesser-included offense of rape of a child and that the trial court did not err when it so instructed the jury. Accordingly, we reinstate and affirm the Defendant's conviction and sentence for aggravated sexual battery.

Petitioner, Deshawn Lamar Baker, appeals the lower court’s order denying post-conviction relief from his convictions for aggravated robbery, conspiracy to commit aggravated robbery, and being a felon in possession of a handgun.  On appeal, Petitioner argues that trial counsel provided ineffective assistance and that the State withheld exculpatory evidence, violating his right to due process under Brady v. Maryland, 373 U.S. 83 (1963).  Upon our review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

The Defendant, Brandon Taliaferro, was convicted of first degree murder in the attempt to perpetrate a robbery and attempted especially aggravated robbery. See Tenn. Code Ann. §§ 39-12-101; -13-202(a)(2); -13-403(a). In this appeal as of right, the Defendant contends (1) that the trial court erred by allowing the State to enter into evidence the entire tape-recorded conversation between the Defendant and a State‘s witness, the mother of his child, and (2) that the evidence was insufficient to sustain his convictions, arguing that there was no proof that he intended to rob the victim or that he was criminally responsible for the actions of the person(s) who killed the victim. Upon review, we affirm the judgments of the trial court.

The Defendant, Anthony Miller, was indicted for possession with intent to sell 0.5 grams or more of cocaine, a Class B felony; possession with intent to deliver 0.5 grams or more of cocaine, a Class B felony; possession with intent to sell one-half ounce or more but less than ten pounds of marijuana, a Class E felony; possession with intent to deliver one-half ounce or more but less than ten pounds of marijuana, a Class E felony; and possession of a firearm with intent to go armed during the commission of a dangerous felony, a Class D felony. See Tenn. Code Ann. §§ 39-17-417, -1324(a). Prior to submission to the jury, the amount for the cocaine possession charges was reduced to less than 0.5 grams, a Class C felony. See Tenn. Code Ann. § 39-17-417(c)(2)(A). Following a jury trial, the Defendant was convicted as charged of the marijuana and unlawful firearm possession charges and of the lesser-included offense of simple possession, a Class A misdemeanor, with respect to the cocaine possession charges. See Tenn. Code Ann. § 39-17-418. The trial court sentenced the Defendant to eleven months and twenty-nine days for the misdemeanor cocaine possession offenses, two years for the felony marijuana possession offenses, and the mandatory minimum three years for the unlawful firearm possession offense. The trial court ordered all of the sentences to be served concurrently for a total effective sentence of three years. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction for unlawful possession of a firearm; and (2) that the trial court erred in instructing the jury on the applicable mental state for the unlawful possession of a firearm offense. Following our review, we conclude that the evidence was sufficient to sustain the Defendant's conviction for unlawful possession of a firearm. However, we also conclude that the trial court committed plain error in instructing the jury with respect to the unlawful firearm possession offense that the Defendant could be found guilty if he acted “either intentionally, knowingly, or recklessly.” As such, we remand this case for a new trial on the unlawful possession of a firearm charge. Additionally, we hold that the trial court failed to merge the Defendant's convictions for simple possession of cocaine into one conviction and his convictions for felony possession of marijuana into one conviction. Accordingly, we remand this case to the trial court for merger of those convictions and entry of corrected judgment forms reflecting said merger.

A Shelby County jury convicted the Defendant, Krishon Harris, of three counts of criminally negligent homicide, one count of vehicular assault, one count of reckless aggravated assault, two counts of driving under the influence, one count of reckless driving, and one count of driving with a suspended license. The trial court merged the three homicide convictions, merged the aggravated assault conviction and the two driving while under the influence convictions into the conviction for vehicular assault, and then sentenced the Defendant to a total effective sentence of ten years in the Tennessee Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions for criminally negligent homicide and vehicular assault. After review, we affirm the trial court's judgments.

A Madison County jury found the Defendant, Tracey McQuinn Taylor, guilty of two counts of aggravated robbery and one count of felon in possession of a firearm. The trial court sentenced him to concurrent sentences of twelve years for each count of aggravated robbery to be served consecutively to a four year sentence for the felon in possession of a firearm conviction. On appeal, the Defendant asserts that the evidence is insufficient to support his convictions and that his sentence is excessive. After review, we affirm the trial court's judgments.

Pro se Petitioner, Christopher Hubbard, appeals from the Shelby County Criminal Court's dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred by summarily dismissing his motion. Upon review, we affirm the judgment of the trial court.

This appeal arises from a determination by the Tennessee Department of Labor and Workforce Development (“the Department”) that Concord Enterprises of Knoxville, Inc. (“Concord”), a pet grooming business, misclassified certain employees as independent contractors from 2006 through 2011 and, therefore, was liable for unpaid unemployment taxes from that period. Following a hearing, the Appeals Tribunal concluded that unemployment taxes were due, a decision affirmed by the Commissioner’s Designee. Concord petitioned for judicial review. The Chancery Court for Davidson County (“the Trial Court”) affirmed the decision of the Commissioner’s Designee and dismissed Concord’s petition. Concord appeals to this Court. We find, inter alia, that the pet groomers at issue both performed their service at Concord’s place of business and performed pet grooming service that fell squarely within Concord’s course of usual business. Evidence both substantial and material supports the agency’s determination. We affirm the judgment of the Trial Court.

This appeal involves the interpretation of a declaration of covenants for a homeowners’ association. Appellant, the homeowners’ association, filed liens on lots owned by Appellee for nonpayment of association fees. Appellee brought suit to quiet title and for damages for slander of title. The trial court dismissed the slander of title claim and interpreted the declaration of covenants to exempt Appellee from the payment of association fees. The trial court removed the liens filed against Appellee’s lots, but assessed no monetary damages against Appellant. Appellant appeals. Discerning no error, we affirm.

The plaintiff filed this health care liability action on behalf of herself and her deceased husband, alleging that his death was caused by the negligent care he received from the defendant hospital and physicians. The defendants moved to dismiss the plaintiff's claims because she failed to comply with the requirements of Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E). The trial court granted the motions and dismissed the plaintiff's claims. The plaintiff has appealed. Discerning no reversible error, we affirm the trial court's judgment of dismissal

A Montgomery County jury convicted the Defendant, Lee Dewane Watts, of two counts of first degree felony murder and one count of especially aggravated robbery.  The trial court merged the Defendant’s first degree murder convictions and ordered him to serve a life sentence for first degree murder and a consecutive twenty-five year sentence for especially aggravated robbery.  On appeal, the Defendant asserts that: (1) the evidence is insufficient to support his convictions; (2) the trial court improperly sentenced him by ordering consecutive sentences and ordering the maximum sentence for the especially aggravated robbery conviction; and (3) the trial court erred when it ruled that the Defendant’s prior convictions would be admissible should he testify.  After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

This is an appeal from the denial of Appellant’s Tennessee Rule of Civil Procedure 60.02 motion for relief from judgment. On August 17, 2015, the trial court entered an order allowing Appellants’ counsel to withdraw. The order also provided Appellants thirty days to retain new counsel. Approximately one week after the order was entered, the case came up on a regularly scheduled docket call and was set for trial in November 2015. Although notice of the trial setting was sent to Appellants, they allege they never received it. The trial was held in the absence of Appellants, and a judgment was entered against them. Two months after the judgment was entered, Appellants filed a motion for relief from judgment pursuant to Rule 60 of the Tennessee Rules of Civil Procedure. The trial court denied Appellants’ motion finding that there was no inadvertence, surprise or mistake that would justify the relief sought. Discerning no error, we affirm.

Defendant, Brian Lackland, was indicted by the Shelby County Grand Jury in two separate indictments for aggravated robbery, aggravated burglary, attempted first degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony. The indictments were consolidated for trial. A jury found Defendant guilty of simple assault, aggravated burglary, attempted first degree murder, and employing a firearm during the commission of a dangerous felony. The charge for aggravated assault was dismissed. Defendant was sentenced to a total effective sentence of twenty-three years. Between the trial and the hearing on the motion for new trial, the victim signed an affidavit recanting his trial testimony. The trial court denied the motion for new trial, finding that the victim's recantation was not credible. On appeal, Defendant challenges the sufficiency of the evidence and the trial court's denial of the motion for new trial. Because the evidence was sufficient to support the convictions and the trial court did not abuse its discretion in denying the motion for new trial, the judgment of the trial court is affirmed.

A jury in the Montgomery County Circuit Court found the Appellant, Nicholas Rico Durant, guilty of the first degree premeditated murder of his wife, and the trial court sentenced him to life imprisonment.  On appeal, the Appellant contends that the evidence was not sufficient to establish beyond a reasonable doubt that he acted with premeditation and that the trial court’s jury instruction regarding premeditation was not sufficient to “satisfy state and federal constitutional rights to due process and trial by jury.”  Upon review, we affirm the judgment of the trial court.

The pro se petitioner, Eric R. Wright, appeals the habeas court’s summary dismissal of his petition for writ of habeas corpus alleging eleven reasons why the habeas court erred. After review, we affirm the summary dismissal of the petition.

A musician/composer borrowed money from a bank and assigned performance royalties as collateral. He later filed for bankruptcy, and his debt to the bank was discharged. The bank, however, continued to collect royalties during the pendency of the bankruptcy case. The musician/composer filed suit against the bank seeking recovery of the royalties collected by the bank after the filing of the bankruptcy petition based on theories of unjust enrichment and conversion. The musician/composer also sought damages from the bank for violation of the automatic stay of 11 U.S.C. § 362. The bank moved to dismiss the case for failure to state a claim upon which relief can be granted. The trial court granted the motion. Because it lacked subject matter jurisdiction over the claims, we vacate the decision of the trial court.      

Defendant, Jerry L. Faulkner, appeals as of right from the Shelby County Criminal Court’s denial of his motion under Tennessee Rule of Criminal Procedure 36.1 to correct an illegal sentence. Defendant contends that the trial court erred by concluding that relief was not available because his illegal sentence had expired and thus was not subject to correction under Rule 36.1. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

The Appellant, Jerome Wall, filed a motion to correct an illegal sentence in the Shelby County Criminal Court pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court denied the motion, and the Appellant appeals the ruling. Based upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

A woman died in a multi-vehicle accident. Two wrongful death actions were filed, one by the woman’s daughter, the other by the woman’s husband. The daughter’s suit named the husband and others as defendants. The husband’s suit named one of the other drivers as the only defendant. The trial court dismissed the daughter’s complaint, holding that Tennessee’s wrongful death statute creates only one cause of action and that the husband, as the surviving spouse, was granted priority to prosecute the action under the statute. The daughter appeals the dismissal of her complaint. Because the husband is unable to name himself as a defendant in the suit he has filed, he is not able to prosecute the wrongful death action in a manner consistent with the right of the decedent to sue all wrongdoers whose actions are alleged to have led to her death; accordingly, we reverse the judgment of the trial court dismissing the daughter’s complaint, reinstate the complaint, and remand the case for further proceedings.

Kelly D. Bush and Byron V. Bush, DDS (“the Bushes”) appeal the December 7, 2015 order of the Chancery Court for Williamson County (“the Trial Court”) dismissing their suit against Commerce Union Bank d/b/a Reliant Bank (“Reliant”). We find and hold that the doctrine of prior suit pending applies to this case, and therefore, the Trial Court correctly dismissed this suit. We affirm.

The Petitioner, Rochelle Bush, appeals the denial of her petition for post-conviction relief in which she challenged her concurrent sentences of ten years at thirty percent for her aggravated robbery conviction and twenty years at one hundred percent for her especially aggravated kidnapping conviction. On appeal, the Petitioner contends that she was denied her right to the effective assistance of counsel, which resulted in the trial court improperly enhancing her sentences. We affirm the post-conviction court's denial of relief.

This appeal arises from a civil action in which the jury returned a verdict in favor of Plaintiff for injuries sustained in a motor vehicle accident. Defendants appeal contending the trial court committed reversible error by limiting their impeachment of Plaintiff regarding three felony convictions. After applying the balancing test under Tennessee Rule of Evidence 403 to determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the trial court allowed Defendants “to question the plaintiff about whether he has been convicted of three felonies” but barred any questions about “the details regarding the nature of the convictions, types of convictions or the facts and circumstances surrounding the convictions.” The dispositive issue is whether a party to a civil action has an absolute right under Tennessee Rule of Evidence 609 to impeach a witness with evidence of prior felony convictions including the details regarding the nature of his convictions, the types of convictions, or the facts and circumstances surrounding the convictions. Defendants contend the evidence was admissible as a matter of right under Tennessee Rule of Evidence 609; therefore, the trial court did not have the discretion to conduct a balancing test under Tennessee Rule of Evidence 403. Having determined that the trial judge had the discretion to conduct a balancing test under Tennessee Rule of Evidence 403 and that the court did not abuse its discretion in limiting the scope of Defendants’ impeachment of Plaintiff, we affirm.