APPELLATE COURT OPINIONS

This appeal arises from the circuit court’s grant of a motion to dismiss. Appellant Geico filed an action in general sessions court against Appellee G&S Transportation, seeking subrogation damages resulting from an automobile accident. The general sessions court entered a default judgment in favor of Geico. G&S appealed the case to circuit court. Three years later, G&S filed a motion to dismiss the case for failure of Geico to prosecute. Geico did not file a response and the trial court granted the motion to dismiss. Geico appeals. Discerning no error, we affirm.

A jury convicted the defendant of carjacking and employment of a firearm during the commission of a dangerous felony. The trial court imposed an effective sixteen-year sentence. The Court of Criminal Appeals affirmed. In this Court, the defendant presents the following issues: (1) whether the trial court erred in denying his motion to suppress the victim’s identification of him because the victim previously viewed his photograph on a county-operated “mug shot” website; (2) whether the trial court committed plain error in failing to instruct the jury on possession of a firearm during the commission of a dangerous felony as a lesser-included offense of employment of a firearm during the commission of a dangerous felony; (3) whether the failure to name the predicate felony of the firearm offense voids that count of the indictment; (4) whether the defendant’s conviction for the firearm offense violates the prohibitions against double jeopardy and the terms of Tennessee Code Annotated section 39-17-1324(c); and (5) whether the evidence was insufficient to support the convictions. We hold that the victim’s prior viewing of the defendant’s booking photograph on the county-operated website did not constitute state action and that the trial court therefore properly denied the defendant’s motion to suppress the victim’s identification of him. We further hold that the defendant failed to establish that the trial court’s failure to instruct the jury on the lesser-included offense of possession of a firearm during the commission of a dangerous felony affected a substantial right, so the defendant is not entitled to plain error relief. Based on our holding in State v. Duncan, No. W2013-02554-CCA-R3-CD, 2016 WL ____, at * _ (Tenn. ___ ___, 2016), released on the same date as this opinion, we conclude that the failure to name the predicate felony of the firearm offense does not void that count of the indictment. We hold that the defendant’s convictions for carjacking and employing a firearm during the commission of a dangerous felony did not violate either double jeopardy or Tennessee Code Annotated section 39-17-1324(c). Finally, we conclude that the evidence was sufficient to support the convictions. Accordingly, we affirm the judgment of the Court of Criminal Appeals

This case involves competing claims concerning a State construction project. The trial court awarded one of the subcontractors on the project compensatory damages, plus interest, based on the prime contractor's failure to remit payments for work that had been performed. On appeal, the prime contractor challenges the trial court's finding that it committed the first material breach of its contract with the subcontractor. The prime contractor also challenges the trial court's finding that it did not prove its claims for damages, which were predicated on an alleged delay created by the subcontractor and the subcontractor's cessation of performance. Although the subcontractor maintains that the trial court's findings regarding material breach should be left undisturbed, it appeals the trial court's specific award of interest, the dismissal of its fraudulent concealment claim, and the denial of its request for attorney's fees. Having reviewed the record transmitted to us on appeal, we affirm in part, modify in part, and remand for further proceedings consistent with this Opinion.

The plaintiffs sued an attorney for legal malpractice related to the enforcement of two promissory notes. The plaintiffs purchased these notes, which were secured by property at a real estate development, from the two other defendants in this lawsuit. During the purchase of these notes, the sellers were represented by the defendant-attorney in this lawsuit. Subsequently, the plaintiffs hired the same attorney to help them collect the amounts due under the notes from the real estate developer. The attorney drafted a complaint and an agreed judgment for each of the promissory notes and filed these documents in the Circuit Court for Knox County. The circuit court entered the agreed judgments the same day they were filed. When the plaintiffs attempted to sell the property that secured the promissory notes, the real estate developer's former business partner filed a motion for an injunction in federal court. The federal district court issued two injunction orders, one in May 2012 and one in August 2012. Both orders were based on findings that the transaction by which the plaintiffs acquired the promissory notes was likely fraudulent. On January 6, 2014, the parties who sold the notes to plaintiffs filed an affidavit that, according to the plaintiffs, admitted that the sale of the notes to plaintiffs was fraudulent. On January 6, 2015, the plaintiffs filed this action against their former attorney and the parties that sold them the promissory notes. The attorney filed a motion to dismiss under Tenn. R. Civ. P. 12.02(6), arguing that the plaintiffs' claim was time barred because it accrued in August 2012. The trial court granted this motion because it determined that the plaintiffs knew they had suffered an injury when the district court issued the second injunction order in August 2012. We affirm

In this appeal, we consider the sufficiency of an indictment. The five-count indictment charged the defendant with several felonies and also with employing a firearm during the commission of a dangerous felony. The count for the firearm charge recited the statute listing the offenses that can constitute a “dangerous felony” but did not designate one of the accompanying charges as the predicate dangerous felony. After a trial, a jury found the defendant guilty on all five counts. On appeal, the defendant argues that the indictment for the firearm charge must be dismissed because, by not designating the predicate felony for the firearm charge, it violated his constitutional right to be informed of the nature and cause of the accusation against him. We hold that, considering the entire five-count indictment, the count of the indictment charging the defendant with employing a firearm during the commission of a dangerous felony sufficiently apprised the defendant of the nature and cause of the accusation against him and enabled him to adequately prepare a defense to the charge, and therefore is sufficient to meet the constitutional requirement. Accordingly, we reverse the decision of the Court of Criminal Appeals on that issue. However, because the trial court erroneously instructed the jury on the charge of employing a firearm during the commission of a dangerous felony, we remand for a new trial on that charge.

The petitioner, David Lynn Jordan, appeals the post-conviction court's denial of his petition for post-conviction relief in which he challenged his convictions of three counts of first degree premeditated murder, two counts of felony murder, two counts of attempted first degree murder, two counts of aggravated assault, and one count of leaving the scene of an accident and his sentences of death. On appeal, the petitioner contends that (1) he received ineffective assistance of counsel during both the guilt and penalty phases of the trial; (2) the venue of the trial in Madison County, Tennessee, violated his rights to a fair trial and due process; (3) the State committed prosecutorial misconduct by suppressing evidence; (4) the selection and impaneling of the grand jury was unconstitutional; (5) the post-conviction court erred in denying his motion to continue the evidentiary hearing; (6) the post-conviction court erred in allowing trial counsel to assist the State during the evidentiary hearing; (7) the post-conviction court erred in excluding an expert witness; (8) Tennessee's death penalty scheme is unconstitutional; (9) his death sentence is disproportionate; and (10) cumulative error warrants a new trial. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Raymond B. Thomas (“the Defendant”) pleaded guilty to one count of felony failure to appear and was sentenced to two years' incarceration. On appeal, the Defendant challenges the trial court's denial of his request for an alternative sentence. Discerning no error, we affirm the judgment of the trial court.

Leonardo Williams (“the Defendant”) appeals the summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Defendant claims the trial court erred in revoking his probation on a three-year sentence because the sentence had expired. The trial court found the motion failed to state a colorable claim because the Defendant’s sentences imposed by the court were legal and proper. We affirm the summary dismissal pursuant to Rule 20, Rules of the Court of Criminal Appeals.

This appeal comes before us a second time. In the first appeal, we affirmed in part and reversed in part the judgment of the trial court and remanded the case for the trial court to determine the manner in which to divide the marital estate given the adjustments we made and the nature of the marital assets; we also vacated the trial court’s amended order modifying the original award of alimony and reinstated the original award. On remand, the court entered an order providing that the Wife’s interest in Husband’s 401K Plan would be increased in the amount of the adjustments ordered by this court, to be made pursuant to the Qualified Domestic Relations Order which was also entered by the court; the court awarded Wife a judgment for the difference in the alimony awarded in the original decree and that paid by Husband pursuant to the amended decree. In this appeal, Wife challenges the trial court’s compliance with this court’s instructions. We find that the orders entered by the court comply with the instructions of this court as to the division of the marital estate; we modify the order relating to the award of alimony to specifically state the amount and type of alimony awarded.

The Petitioner, Martin Dean Gibbs, appeals as of right from the denial of his petition for post-conviction relief, wherein he challenged his convictions for multiple counts of aggravated sexual battery of a child less than thirteen years of age and rape of a child more than three years of age but less than thirteen years of age.  See Tenn. Code Ann. §§ 39-13-504; -522.  On appeal, the Petitioner contends that he received ineffective assistance of counsel based on trial counsel’s failure to provide appropriate accommodations for the Petitioner’s hearing difficulties during his trial.  The Petitioner claims that, because of this failure, he was unable to meaningfully participate in his own defense at trial.  Following our review, we affirm the judgment of the post-conviction court.

Defendants, Laurie Lynn Welch (“Mrs. Welch) and Roland John Welch (Mr. Welch”), were convicted of promotion of methamphetamine manufacturing, initiation of methamphetamine manufacture process, and possession of drug paraphernalia.  Mrs. Welch was sentenced to four years for the promotion charge, eight years for the initiation charge, and eleven months, twenty-nine days for possession of drug paraphernalia to be served concurrently for an effective eight-year sentence to be served in the Department of Correction as a Range I offender.  Mr. Welch was sentenced to eight years for the promotion charge, eighteen years for the initiation charge, and eleven-months, twenty-nine days for possession of drug paraphernalia to be served concurrently for an effective eighteen-year sentence to be served in the Department of Correction as a Range II offender.  On appeal, both Defendants argue that: (1) the affidavit in support of the search warrant did not contain probable cause; (2) the trial court erred by failing to suppress evidence discovered as a result of a warrantless search and seizure; (3) the evidence was insufficient to support both Defendants’ convictions for promotion of methamphetamine manufacture and initiation of methamphetamine manufacturing process and Mr. Welch’s conviction for possession of drug paraphernalia; and (4) Mr. Welch’s sentence was excessive.  After a thorough review, we affirm the judgments of the trial court.   

The petitioner, Billy Joe Russell, Jr., a.k.a. Joe Billy Russell, Jr., a.k.a. Craig C. Scott, appeals the post-conviction court’s denial of his petition for relief. On appeal, the petitioner asserts that his petition is timely because it falls within one year of certain federal opinions which establish a constitutional right requiring retroactive application. After a thorough review of the record, we affirm the dismissal of the petition in accordance with Rule 20, Rules of the Court of Criminal Appeals.

The Defendant, Travis Lindsey, was convicted by a Maury County Circuit Court jury of the sale of 0.5 gram or more of cocaine within 1000 feet of a school, a Class A felony, and sale of 0.5 gram or more of cocaine, a Class B felony.  See T.C.A. §§ 39-17-432 (2014) (school zone), 39-17-417(A)(3)(C)(1) (2010) (amended 2012, 2014) (sale of cocaine).  The trial court sentenced the Defendant to concurrent sentences of twenty years for the sale of cocaine in a drug-free zone conviction and ten years for the sale of cocaine conviction.  The court also ordered concurrent service with an unrelated sentence in federal court.  On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for sale of cocaine in a drug-free zone, (2) the court erred by allowing testimony relative to the Defendant’s prior bad acts, and (3) the court erred by admitting into evidence recorded statements in violation of the Confrontation Clause.   We affirm the judgments of the trial court.

This is a termination of parental rights case focusing on the three minor children of Bobby H. (“Father”). On March 11, 2015, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Father. DCS alleged as a basis for termination the statutory grounds of (1) abandonment by failure to provide a suitable home, (2) substantial noncompliance with the permanency plans, (3) persistence of the conditions leading to removal of the children, and (4) mental incompetence preventing adequate care of the children. Following a bench trial, the trial court granted the petition upon its determination by clear and convincing evidence that DCS had proven the statutory grounds of abandonment by failure to provide a suitable home and persistence of the conditions leading to removal of the children. The court further determined by clear and convincing evidence that termination of Father’s parental rights was in the children’s best interest. Father has appealed. Discerning no reversible error, we affirm.

We granted this appeal to consider whether our decision in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), wherein we set forth the test for determining whether a criminal offense constitutes a lesser-included offense of a charged offense, remains viable following the 2009 amendments to Tennessee Code Annotated section 40-18-110, which codified Burns parts (a) and (c) but excluded part (b). Having determined that the statute did not abrogate part (b) of the Burns test, we reverse the Court of Criminal Appeals’ conclusion that aggravated sexual battery is not a lesser-included offense of rape of a child because the legislature did not include it in the 2009 amendments to the statute. Upon further consideration, we hold that aggravated sexual battery is, in fact, a lesser-included offense of rape of a child. Lesser-included offenses are to be determined by referring to the express provisions of the statute, and if not specifically mentioned therein, by further applying the guidance of Burns part (b). We also conclude, based on the proof in the record on appeal, that defendant’s conviction for aggravated sexual battery as a lesser-included offense of rape of a child was supported by the evidence and should be reinstated. Accordingly, the judgment of the Court of Criminal Appeals vacating this conviction is reversed and his conviction stands. The remaining issues decided by the Court of Criminal Appeals are affirmed.  

The Petitioner, Kimberly Mangrum, appeals the Dickson County Circuit Court’s denial of her petition for post-conviction relief from her convictions for first degree felony murder, attempted first degree premeditated murder, aggravated burglary, and especially aggravated kidnapping and her effective life sentence.  The Petitioner contends that (1) she received the ineffective assistance of counsel on appeal and (2) counsel’s ineffective assistance deprived her of due process of law.  We affirm the judgment of the post-conviction court.

The appellant, James Ronald Rollins, filed a motion to correct an illegal sentence in the Hamilton County Criminal Court pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court summarily dismissed the motion, and the appellant appeals the ruling. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

A long haul waste carrier was cited for violating safety regulations by the Tennessee Department of Labor and Workforce Development, Division of Occupational Safety and Health Administration (the “Division”). The waste carrier informed the Division that it had corrected the alleged violations and received an automated reply that the Division had ceased operations due to the federal government’s suspension of funding. The waste carrier intended to contest the citations but failed to notify the Division of its intent within the statutory twenty-day period. Once the Division was operating again and the waste carrier informed the Division of its intent to contest the citations, the Division responded that the waste carrier had waited too long and that the citations had become final orders by operation of law. The waste carrier filed a petition for judicial review in chancery court, and the trial court remanded the case back to the Division to allow the waste carrier to seek relief pursuant to Rule 60.02(1) of the Tennessee Rules of Civil Procedure. The Division appealed, claiming the chancery court lacked subject matter jurisdiction to consider the petition. We affirm the trial court’s judgment.

Petitioner, Adam Clyde Braseel, was convicted of first degree premeditated murder, felony murder, especially aggravated robbery, attempted first degree murder, aggravated assault, and assault and sentenced to an effective sentence of life imprisonment with the possibility of parole.  State v. Adam Clyde Braseel, No. M2009-00839-CCA-R3-CD, 2010 WL 3609247, at *1 (Tenn. Crim. App. Sept. 17, 2010), perm. app. denied (Tenn. Feb. 17, 2011).  On direct appeal, this Court merged the aggravated assault and attempted first degree murder convictions and corrected several clerical errors in the judgments.  In all other respects, the convictions and sentences were affirmed.  Petitioner subsequently sought post-conviction relief on the basis of ineffective assistance of counsel, arguing, among other things that trial counsel should have filed a motion to suppress the pre-trial identification of Petitioner as the perpetrator, should have challenged the eyewitness identification of Petitioner at trial, and should have requested a jury instruction on eyewitness identification.  After a hearing, the post-conviction court granted relief.  The State appealed.  After a thorough review, we reverse and remand the judgment of the post-conviction court.  All of Petitioner’s covictions are reinstated and his petition for post-conviction relief is dismissed.

The trial court revoked Ashley Kelso’s (“the Defendant”)probation and ordered her to serve the balance of her sentence.  After a review of the record and applicable law, we conclude that the trial court did not abuse its discretion in finding that the Defendant violated her probation or by ordering that she serve her sentence in incarceration.  The judgment of the trial court is affirmed.

The defendant, John Freitas, was convicted by a Shelby County Criminal Court jury of assault and domestic assault, both Class A misdemeanors, and sentenced to consecutive terms of eleven months and twenty-nine days in the county workhouse. On appeal, he argues that: (1) the evidence is insufficient to sustain his convictions; (2) his convictions for assault and domestic assault violate double jeopardy; and (3) the trial court abused its discretion by imposing consecutive sentences. After review, we conclude that it violates double jeopardy for the defendant to receive punishments for assault and domestic assault. Therefore, we order that the defendant's convictions stand but that amended judgments be entered showing that the simple assault conviction merges into the domestic assault conviction for imposition of one sentence.

This is an appeal from an order granting summary judgment in which Defendant argues that summary judgment was improper because a dispute of material fact exists regarding her affirmative defenses. Finding no error, we affirm.

This is a Tennessee Rule of Appellate Procedure 9 Interlocutory appeal. Upon further review, we have determined that none of the issues certified for interlocutory appeal are properly before us. Accordingly, we vacate our order granting interlocutory appeal and dismiss the appeal.