APPELLATE COURT OPINIONS

In this post-divorce dispute, Father argues that the trial court erred in failing to make him the primary residential parent because of Mother’s alleged failure to facilitate a close relationship between Father and the child. The trial court found a material change in circumstances, but concluded that a change in the primary residential parent was not in the best interest of the child. We affirm because the evidence does not preponderate against the decision of the trial court. 

The Defendant, Alison Briars, pleaded guilty in the Shelby County Criminal Court to cruelty to animals, a Class A misdemeanor, with the length and manner of service of the sentence to be determined by the trial court. See T.C.A. § 39-14-202 (2014). The court sentenced the Defendant to eleven months and twenty-nine days, with sixty days’ confinement and the remainder to be served on supervised probation. On appeal, the Defendant contends that the trial court (1) erred in denying judicial diversion and (2) abused its discretion by not sentencing her to full probation. We affirm the judgment of the trial court.

The Defendant, Donna Marie Chartrand, was charged in the Circuit Court for Gibson County with conspiracy to manufacture methamphetamine, promotion of the manufacture of methamphetamine, felony possession of drug paraphernalia, and misdemeanor possession of drug paraphernalia. See T.C.A. §§ 39-17-417(a)(1) (Supp. 2012) (amended 2014) (manufacture of methamphetamine); 39-12-103 (2014) (conspiracy); 39-17-433(a)(1) (2014) (promotion of methamphetamine manufacture); 39-17-425(b)(1) (Supp. 2012) (felony possession of drug paraphernalia); 39-17-425 (Supp. 2012) (misdemeanor possession of drug paraphernalia). In this interlocutory appeal, the Defendant contends that the trial court erred in denying her motion to suppress the evidence seized during the search of her home, arguing that the search warrant was not supported by probable cause. We reverse the order of the trial court and remand the case for further proceedings in which the evidence obtained pursuant to the invalid warrant is suppressed.

The Defendant, Brenda Woods, was convicted by a McNairy County Circuit Court jury of three counts of procuring an illegal vote. See T.C.A. §2-19-117 (2014). The trial court sentenced the Defendant to two years to be served on community corrections. On appeal, the Defendant contends that: (1) the evidence is insufficient to support her convictions; (2) her convictions violate double jeopardy; (3) the trial court erroneously admitted irrelevant evidence; and (4) the prosecutor made improper statements during closing argument. We affirm the judgments of the trial court.

The Defendant, Willie Nolan, was convicted by a Shelby County jury of attempted reckless endangerment, aggravated assault, reckless aggravated assault, felony reckless endangerment, and vandalism. See Tenn. Code Ann. §§ 39-12-101, -13-102, -14-408. After merging the attempted reckless endangerment conviction into the aggravated assault conviction, the trial court imposed a total effective sentence of twenty-seven years. In this appeal as of right, the Defendant contends that (1) the trial court erred by allowing the prosecution to enter as substantive evidence the unsigned statement of a witness in violation of Tennessee Rule of Evidence 803(26); and (2) there was insufficient evidence to support the convictions for aggravated assault, reckless aggravated assault, and felony reckless endangerment. After careful review of the record and applicable law, we affirm the judgments of the trial court.

The defendant, Adrian Marcel Newbill, was convicted by a Marshall County Circuit Court jury of the possession of 26 grams or more of cocaine, a Schedule II controlled substance, with the intent to sell/deliver, a Class B felony, and was sentenced by the trial court as a Range I, standard offender to twelve years in the Department of Correction. The defendant raises two issues on appeal: (1) whether the evidence is sufficient to sustain his conviction, and (2) whether the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

The Defendant-Appellant, Gary Mitchell Hestand, was convicted by a Clay County jury of assault upon a law enforcement officer, a Class A misdemeanor, and resisting arrest, a Class B misdemeanor. The trial court imposed an effective sentence of eleven months and twenty-nine days, suspended to supervised probation. On appeal, the Defendant argues that: (1) the trial court erred by refusing to grant a new trial based on destroyed evidence; (2) the trial court erred by not allowing the Defendant to deploy a taser for demonstrative purposes; (3) the evidence is insufficient to support his convictions; (4) the trial court erred by not setting reasonable time limits for the length of the trial days; and (5) the trial court abused its discretion in not dismissing a biased juror for cause. Discerning no error, we affirm the judgments of the trial courrt.

Because the order appealed is not a final judgment, this Court lacks subject matter jurisdiction. Therefore, we dismiss this appeal.

Because the order appealed is not a final judgment, this Court lacks subject matter jurisdiction. Therefore, we dismiss this appeal.

In this termination of parental rights case, Mother appeals the trial court’s findings of the following grounds for termination: abandonment for failure to provide a suitable home; abandonment by an incarcerated parent; abandonment by willful failure to visit; abandonment by willful failure to support; substantial noncompliance with the permanency plans; and the persistence of conditions. Mother also appeals the trial court’s conclusion that termination was in the children’s best interest. We reverse as to the trial court’s findings of abandonment by failure to provide a suitable home and abandonment by an incarcerated parent. We vacate the trial court’s findings of abandonment by willful failure to support and substantial noncompliance with the permanency plans due to the trial court’s failure to make specific findings of fact. We affirm the trial court’s findings of abandonment by willful failure to visit and persistence of conditions. We also affirm the trial court’s finding that termination is in the best interest of the children. Accordingly, we affirm the termination of Mother’s parental rights.

Appellee Avenue Bank (“the Bank”) filed suit against the Appellant Guarantee Insurance Company (“GIC”), alleging breach of contract with respect to a “Funds Held Agreement” entered into between the parties. Pursuant to the parties' agreement, the Bank agreed to disburse proceeds of a letter of credit to GIC. In turn, GIC agreed to hold the funds in a separate “Funds Held Account” and disburse the funds to pay unpaid premiums and certain claims that might become payable pursuant to policies of workers' compensation insurance. The agreement further provided that upon the resolution of all workers' compensation claims filed within the applicable statute of limitations period, GIC would, upon request of the Bank, return to the Bank any funds remaining in the Funds Held Account. Following the resolution of all claims filed within the limitations period, the Bank demanded the repayment of the remaining balance. GIC failed to comply with this demand. In its answer, GIC alleged that it was unable to perform in light of a Delaware court order concerning the liquidation of a third-party, Ullico Casualty Company (“Ullico”). It contended that the terms of the Delaware order barred disbursement of the funds at issue. The Bank ultimately moved for judgment on the pleadings by asserting that the undisputed facts showed that it was entitled to relief. The trial court granted the motion and concluded that the facts admitted by GIC's answer established the Bank's right to recover on its breach of contract claim. In doing so, the trial court rejected GIC's arguments that Ullico's liquidation and/or the Delaware court order had any effect on its performance. We affirm.

The defendant, Eliot Russell, was convicted of one count of attempted rape of a child, a Class B felony, and one count of aggravated sexual battery, a Class B felony. The trial court imposed twelve-year sentences for each conviction and ordered the sentences to be served consecutively for an effective sentence of twenty-four years. On appeal, the defendant argues that the evidence is insufficient to sustain his conviction for attempted rape of a child and that the trial court erred in imposing a twenty-four year sentence. Following our review of the record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

A Shelby County Criminal Court Jury convicted the appellant, Tasha Briggs, of possession of a controlled substance with intent to sell, a Class E felony, possession of a controlled substance with intent to deliver, a Class E felony, and possession of a firearm with the intent to go armed during the commission of a dangerous felony, a Class D felony. After a sentencing hearing, the trial court merged the convictions for possession of a controlled substance and sentenced the appellant to an effective four-year sentence to be served as three years in confinement followed by one year on probation. On appeal, the appellant contends that the trial court improperly instructed the jury regarding the mens rea for the offense of possession of a firearm with the intent to go armed and that the evidence is insufficient to support the conviction. Based upon the record and the parties' briefs, we conclude that the trial court committed reversible error regarding the instruction and that the case must be remanded for a new trial on the charge of possessing a firearm with the intent to go armed during the commission of a dangerous felony. Moreover, upon remand, the trial court is to enter a single judgment of conviction for possession of a controlled substance with intent to deliver.

The defendant, Jacob Dale Gormsen, pled guilty to one count of driving under the influence, a Class A misdemeanor, in violation of Tennessee Code Annotated section 55-10-401 (2010). He reserved a certified question challenging the trial court’s denial of his motion to suppress. The defendant asserts that his encounter with law enforcement was not consensual and that law enforcement had no probable cause or reasonable suspicion to initiate an investigatory stop after discovering him unconscious in a running vehicle on the road. We conclude that the interaction between the defendant and the officer began as a consensual police-citizen encounter and that the officer possessed reasonable suspicion at the point that the interaction became an investigatory stop. Accordingly, we affirm the denial of the motion to suppress.

Petitioner, Morgan Moore, entered guilty pleas to first degree murder and criminal responsibility for first degree murder for his involvement in the murders of his parents. He received concurrent sentences of life in prison. He thereafter filed a timely petition for post-conviction relief alleging that trial counsel failed to properly inform him of the nature and consequences of his guilty pleas, specifically, the length of a life sentence, and that as a result, his guilty pleas were not entered knowingly, intelligently, and voluntarily. Following an evidentiary hearing, the post-conviction court denied relief, and this appeal follows. Upon review, we affirm the judgment of the post-conviction court.

This is a Title IV-D child support case. Father/Appellant appeals the trial court's modification of his child support obligation on grounds that: (1) the Juvenile Court did not have subject matter jurisdiction to modify the Circuit Court's child support order; and (2) the trial court erred in applying the Child Support Rules and Regulations in calculating Appellant's monthly child support obligation. Appellant also appeals the trial court's award of attorney's fees in this case. Discerning no error, we affirm and remand.

The Appellant, Bertin DeJesus Jimenez, pled guilty to stalking and received a sentence of ninety days in the workhouse. Thereafter, the Appellant filed a motion to vacate the judgment, contending that the arrest warrant was void ab initio because it failed to allege all of the elements of the offense. The trial court denied the motion, and the Appellant appealed. Upon review, we conclude that the appeal should be dismissed.

Petitioner, James Mitchell Smith, is seeking post-conviction relief from his convictions for driving under the influence (“DUI”), driving on a suspended or canceled license, reckless endangerment, and two counts of leaving the scene of an accident. The post-conviction court denied relief, and petitioner now appeals, arguing that he received ineffective assistance of counsel at trial. Following our review, we affirm the judgment of the post-conviction court.

The defendant, Andre Bernard Easley, appeals his Benton County Circuit Court jury conviction of introduction into or possession of drugs in a penal institution, claiming that the sentence imposed by the trial court was excessive. Discerning no error, we affirm the judgment of the trial court.

The Petitioner, Timothy A. Baxter, appeals as of right from the Madison County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that his petition stated cognizable claims for habeas corpus relief because it alleged numerous violations of his constitutional rights, ineffective assistance of his trial and appellate counsel, “pervasive governmental misconduct,” and insufficiency of the convicting evidence. Following our review, we reverse the judgment of the Circuit Court and remand the case for treatment of the petition as one for post-conviction relief and further proceedings consistent with the Post-Conviction Procedure Act.

Following a jury trial, the Defendant, Brandon Leon Forbes, was convicted of aggravated burglary, a Class C felony; theft of property valued at $10,000 or more but less than $60,000, a Class C felony; and vandalism of property valued at $500 or less, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-14-103, -105, -403, -408. The trial court sentenced the Defendant as a Range III, persistent offender to a total effective sentence of twenty-four years. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions; (2) that the State committed prosecutorial misconduct during voir dire; (3) that juror misconduct occurred during the course of his trial; (4) that the trial court erred in determining the length of his sentences; and (5) that the trial court erred in imposing partial consecutive sentences. Following our review, we affirm the judgments of the trial court.

Appellant, Marlon Yarbro, appeals from his convictions for drug offenses, arguing that the State introduced improper evidence of previous misconduct and violated his right to compulsory process and also argues that the trial court improperly applied the drug free school zone enhancement to his conviction for simple possession. After a thorough review, we conclude that Appellant is not entitled to relief on the judgments for selling a controlled substance within a school zone and possession of drug paraphernalia. However, because the school zone enhancement was improperly applied to the simple possession conviction, we remand to the trial court for entry of a corrected judgment.

Defendant, Christopher Loyd Davis, was indicted for theft of property valued over $10,000. After a trial, Defendant was found guilty of theft. The jury verdict form reflects a conviction for theft of property valued over $1000 but less than $10,000, a Class D felony. The judgment form reflects a Class C felony theft conviction with a sentence of twelve years in incarceration as a Career Offender. After the denial of a motion for new trial, Defendant appealed, arguing that the evidence was insufficient to support the conviction, that the State failed to prove the value of the property, that the trial court erred in admitting hearsay evidence, that the trial court erred in denying a jury instruction on ignorance or mistake of fact, and that the trial court erred by having extrajudicial communication with the jury. After our review of the record and applicable authorities, we conclude that the judgments do not properly reflect the jury's verdict. Therefore, we affirm the conviction and remand the case for entry of a corrected judgment.

I respectfully dissent from the conclusion reached by the majority in this case. When establishing the proper amount in restitution owed, the trial court should base the figure on the victim’s pecuniary loss as well as the defendant’s financial resources and future ability to pay or perform. T.C.A. § 40-35-304(b), (d)-(e) (2010); State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994). Furthermore, the payment schedule is not to exceed the term of the sentence imposed. T.C.A. § 40-35-304(c), (g)(2); see also State v. Daniel Lee Cook, No. M2004-02099-CCA-R3-CD, 2005 WL 1931401, at *4 (Tenn. Crim. App. Aug. 10, 2005) (concluding that there was no way the appellant could pay $9,000 in restitution at a rate of $150 per month during a sentence of eleven months and twenty-nine days). Finally, the Tennessee Supreme Court has previously stated that the trial court “simply should [] set the restitution at an amount it believe[s] [the defendant] can pay” rather than attempting to “facilitate payment of its order of restitution.” See State v. Mathes, 115 S.W.3d 915, 919 (2003).

Kristy L. Poland (“the Defendant”) pleaded guilty to theft of property valued at over $500 and was sentenced to one year suspended to supervised probation with restitution to be set by the trial court. After a hearing on the issue of restitution, the trial court ordered the Defendant to pay $8,100 in monthly installments of $75. On appeal, the Defendant argues that the trial court failed to consider her current financial resources and future ability to pay restitution. Upon review of the record and applicable law, we modify the trial court‟s restitution order and remand the case for entry of a new restitution order.