APPELLATE COURT OPINIONS

The appellant, Frederick Keith, was convicted in the Knox County Criminal Court of first degree felony murder, and the trial court sentenced him to life. On appeal, the appellant contends that the evidence is insufficient to support the conviction, that the trial court erred by failing to grant his motion to sever his case from that of his co-defendant, and that the State committed prosecutorial misconduct during closing arguments by vouching for the credibility of State witnesses. Based upon the oral arguments, the record, and the parties‟ briefs, we affirm the judgment of the trial court.

The Defendant, Angela Ayers, was found guilty by a Shelby County Criminal Court jury of voluntary manslaughter, false report, and employing a firearm during the commission of a dangerous felony, Class C felonies. See T.C.A. §§ 39-13-211 (2014), 39-16-502 (2014), 39-17-1324 (2010) (amended 2012). The trial court sentenced the Defendant as a Range I, standard offender to six years for the manslaughter conviction, which was to be suspended to probation after two years’ confinement, to four years for the false report conviction, which was to be suspended to probation after two years’ confinement, and to six years’ confinement at 100% service for the firearm conviction. The court ordered the six-year sentence for the firearm conviction to be served consecutively to the other sentences, for an effective twelveyear sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support her convictions for voluntary manslaughter and false report, (2) the indictment relative to the firearm conviction is insufficient, (3) the trial court erred by excluding proof of the victim’s abusing the Defendant and her son, (4) the trial court erred relative to expert medical testimony, and (5) the trial court erred by refusing to provide the jury with a selfdefense instruction. We affirm the judgments of the trial court relative to the voluntary manslaughter and false report convictions, but we reverse the judgment, vacate the conviction, and dismiss the charge for employing a firearm during the commission of a dangerous felony.

The petitioner, Deeric McAfee, filed in the Knox County Criminal Court a petition for post-conviction relief from his convictions of second degree murder and reckless endangerment. The petitioner alleged that his trial counsel was ineffective. The post-conviction court denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of subject matter jurisdiction.

I concur in the majority's conclusion that clear and convincing evidence exists to support the trial court's finding that Mother committed severe abuse. I write separately, however, to respond to the relevance of my good friend and colleague's discussion of Mother's waiver of her challenge to the Special Judge's appointment in the juvenile court. The opinion states that because Mother did not raise her objection to the appointment of the Special Judge in the juvenile court, the issue is deemed waived. In support of this position, the opinion relies, in part, on this Court's decision in State Department of Children’s Services v. A.M.H., 198 S.W.3d 757 (Tenn. Ct. App. 2006). In the A.M.H. decision, this Court held that the failure to object to the appointment of a special judge results in a waiver of the issue on appeal. Id. at 764. I believe, to avoid confusion, the relevance of A.M.H. to the facts of this case requires clarification.

This appeal results from a dependency and neglect action initiated in the Shelby County Juvenile Court. The juvenile court found that the child was dependent and neglected. The juvenile court also found that the child's severe injuries constituted severe child abuse perpetrated by the child's mother. On appeal, the circuit court affirmed. Discerning no error, we also affirm.

This post-divorce appeal presents the issue of whether the trial court erred in its modification of the parties' permanent parenting plan. The parties were married on March 28, 2009, with one child subsequently born of the marriage. The parties were divorced by final judgment dated August 25, 2011. The trial court concomitantly entered a permanent parenting plan, naming the mother primary residential parent and granting the father co-parenting time of 105 days per year with the child. Approximately eight months later, the father filed a motion seeking modification of the parties' permanent parenting plan, alleging that he had been exercising and should have been awarded at least fifty-percent co-parenting time with the child. Following a hearing conducted on July 31, 2013, the trial court temporarily modified the co-parenting schedule to award each parent equal time with the child. The court reserved the issue of a permanent residential schedule for further hearing. At a subsequent hearing conducted on June 24, 2014, the trial court considered a modification to the permanent parenting plan due to the child's having reached kindergarten age. Upon hearing proof regarding the child's best interest, the trial court entered an order maintaining the mother's status as primary residential parent and awarding the father 105 days of co-parenting time per year. Father timely appealed. Discerning no error, we affirm.

This appeal arises from an election contest. Randy R. Moss, Jr. (“Moss”) ran against Dan P. Evans (“Evans”) for the office of Chief Administrative Officer of the McMinn County Highway Department (“Highway Commissioner”). Evans won. Moss filed an election contest in the Chancery Court for McMinn County (“the Trial Court”) challenging Evans' statutorily required qualifications to hold the office. Moss also sued the McMinn County Election Commission and its officials (“the Election Commission,” collectively) in the same action. Evans and the Election Commission filed motions to dismiss. The Trial Court granted the motions to dismiss, holding that Moss was required to have challenged Evans' certification as a qualified candidate before the Tennessee Highway Officials Certification Board (“the THOCB”) and that Moss could not now challenge Evans' qualifications by an election contest. Moss filed this appeal. We affirm the Trial Court in its dismissing the complaint against the Election Commission, which acted only in a ministerial capacity. We hold, however, that the Trial Court erred in concluding that it had no jurisdiction to hear Moss's challenge to Evans' qualifications. We affirm, in part, and, reverse, in part, the judgment of the Trial Court, and remand this case to proceed against defendant Evans.

The petitioner, Douglas M. Mathis, appeals the summary dismissal of his second petition for writ of habeas corpus.  In it, he repeats the claim of his first such petition, that the trial court was without jurisdiction to conduct his trial.  Because the petitioner has failed to state a cognizable claim for habeas corpus relief, we affirm the summary dismissal of the petition.

This appeal arises from post-divorce proceedings. When the parties divorced in 2008, Mother was designated primary residential parent of the parties' one-year-old son. Mother later remarried and sought permission to relocate to Australia with the child. Following a hearing in 2011, the trial court denied Mother's request to relocate and changed the designation of primary residential parent to Father. Mother moved to Australia with her new husband. Mother instituted this proceeding in 2013, alleging that a material change in circumstance has occurred and that it is in the child's best interest to live with her in Australia. The trial court considered testimony over the course of four days and eventually dismissed Mother's petition. In a previous appeal, this Court remanded the matter for specific findings of fact and conclusions of law. The trial court subsequently entered a lengthy written order explaining its decision. Mother filed a second notice of appeal. We affirm in part and reverse in part.

This is the second appeal of a case involving the alleged breach of a construction contract. The plaintiff general contractor hired the defendant subcontractor to build and install cabinetry for a movie theater. The subcontract provided that the work should be completed by the date the theater was scheduled to open. However, at the theater‘s opening, several items remained unfinished. The general contractor refused to pay despite the subcontractor‘s demand for payment. The general contractor filed suit alleging breach of contract for failure to complete the project in a timely manner and for defective work. The subcontractor counterclaimed for breach of contract for failure to pay under the contract. After a bench trial, the trial court found in favor of the subcontractor and awarded damages. The general contractor now appeals. Discerning no error, we affirm.

This case involves the construction of the Last Will and Testament of Martha B. Schubert (“the Will”). The Chancery Court for Knox County (“the Trial Court”) found and held that Martha B. Schubert (“Deceased”) intended the real property described in the second paragraph of Article IV of the Will to be the two parcels of real property owned by Deceased located on Cherokee Boulevard and that these properties vested immediately in John Schubert upon Deceased's death. John Schubert appeals raising issues regarding whether the Trial Court erred in finding and holding that the second paragraph of Article IV of the Will referred to the two properties on Cherokee Boulevard and that these properties vested in John Schubert immediately upon Deceased's death. We find and hold that the Trial Court did not err in finding and holding that it was Deceased's intent that the second paragraph of Article IV of the Will describe the two Cherokee Boulevard properties. We find and hold, however, that these properties did not vest in John Schubert immediately upon Deceased's death because the Will also contains specific language which, pursuant to Tenn. Code Ann.
§ 31-2-103, directed that the real property be administered as part of Deceased's estate. We, therefore, affirm, in part, and reverse, in part.

Petitioner, Ralph T. O’Neal, appeals the trial court’s order summarily dismissing his pro se petition for post-conviction, habeas corpus, and error coram nobis relief. We find that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the judgment of the trial court is affirmed.

The defendant, Ramone Hunter, appeals his Shelby County Criminal Court jury convictions of aggravated robbery and aggravated burglary, claiming that the evidence adduced at trial was insufficient to support his convictions. Discerning no error, we affirm.

The Defendant-Appellant, Randy Shawn Moore, entered guilty pleas to two counts of aggravated assault and received an effective sentence of 8 years with the manner of service to be determined by the trial court. On appeal, the Defendant-Appellant argues that the trial court abused its discretion in denying his application for judicial diversion. Upon our review, we affirm the judgment of the trial court.

The Defendant-Appellant, Terry Dale Blevins, appeals the trial court’s revocation of his probation and reinstatement of his effective eight-year sentence in the Department of Correction. He previously entered guilty pleas to two counts of facilitation of aggravated robbery and was ordered to serve his sentences on enhanced probation. On appeal, Blevins argues that the trial court abused its discretion when it found that he lacked amenability to rehabilitation. Upon our review, we affirm the judgment of the trial court.

This is a private condemnation action. Appellants own property in Decatur County that does not have access to a public road. Appellants currently access this property by crossing properties owned by the Tennessee Valley Authority and the Appellees. Appellants have verbal permission from both TVA and the Appellees to enter their lands. When TVA would not grant the Appellants an easement to access their property unless the Appellees agreed to grant Appellants a private easement across their property, Appellants filed a private condemnation action against the Appellees pursuant to Tennessee Code Annotated Section 54-14-101 et seq. The trial court found in favor of the Appellees. We affirm.

A majority of this Court has determined that when a defendant is charged with the offenses of kidnapping and robbery as to different victims during a single criminal episode, the jury is not entitled to an instruction, pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012), that in order to convict on the kidnapping charge it must first determine whether the removal or confinement of the kidnapping victim is “essentially incidental” to the contemporaneous robbery of another victim. Because I cannot agree with my colleagues that the White instruction is never applicable to these circumstances, for the reasons set forth in my separate opinion filed today in State v. Teats, No. M2012-01232-SC-R11-CD, I must respectfully dissent.

This appeal presents the issue of whether a trial judge is required to give a jury instruction based on our decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), when a defendant is tried on charges of kidnapping and robbery of different victims. The defendant, along with two accomplices, broke into a family’s home while they were sleeping. Brandishing weapons, the intruders forced the family members to remain in the living room while they ransacked the home. The intruders later fled with money and jewelry. At trial, a White jury instruction was neither requested nor given. The jury convicted the defendant of numerous charges, including five counts of especially aggravated kidnapping of the husband, wife, and three children; aggravated burglary of the husband’s residence; and two counts of aggravated robbery of the husband and wife. The Court of Criminal Appeals affirmed the convictions for especially aggravated kidnapping, aggravated burglary, and one count of aggravated robbery as to the husband and modified the conviction of aggravated robbery of the wife to aggravated assault. On review, we remanded the case for consideration in light of White. The Court of Criminal Appeals affirmed the convictions of especially aggravated kidnapping as to the three children, but, in light of White and State v. Cecil, 409 S.W.3d 599 (Tenn. 2013), reversed the convictions of especially aggravated kidnapping as to the husband and wife and remanded those charges for a new trial. In this appeal, the defendant asserts that the trial court’s failure to give a White jury instruction as to the remaining three convictions for the especially aggravated kidnapping of the children constituted reversible error. In accordance with our opinion in State v. Teats, __S.W.3d__, No. M2012 01232 SC R11 CD (Tenn. 2015) released contemporaneously with this opinion, we hold that the White jury instruction was not required as to the offenses of especially aggravated kidnapping of the three children.

A majority of this Court has determined that when a defendant is charged with the offenses of kidnapping and robbery as to different victims during a single criminal episode, the jury is not entitled to an instruction, pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012), that in order to convict on the kidnapping charge it must first determine whether the removal or confinement of the kidnapping victim is “essentially incidental” to the contemporaneous robbery of another victim. Because I cannot agree with my colleagues that the White instruction is never applicable to these circumstances, I respectfully dissent.

I concur in Chief Justice Lee’s well-written majority opinion in this case. Under the law as it currently stands in Tennessee, the majority has correctly analyzed the issue presented. I write separately to note the same concerns expressed by Justice Bivins in his separate concurrence in our recent decision State v. Alston, namely, concerns about the far-reaching constitutional holding in the case that gives rise to this issue, this Court’s 1991 decision State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). See State v. Alston, No. E2012-00431-SC-R11-CD, --- S.W.3d ---, 2015 WL 2155690, at *9-10 (Tenn. May 5, 2015)(Bivins, J., concurring) (citing Anthony, 817 S.W.2d at 299).

We granted review in this case to determine whether a trial judge is required to give a jury instruction based on our decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), when a defendant is tried on charges of kidnapping and robbery of different victims. The defendant and an accomplice forced their way into the back door of a restaurant, threatened the employees at gunpoint, and ordered them into a back storage area. While the accomplice guarded these employees, the defendant forced the restaurant manager to take him to the cash drawer, where he took the restaurant’s money. The defendant was indicted for aggravated robbery of the store manager and four counts of especially aggravated kidnapping of the other four employees. A jury convicted the defendant of all charges. On appeal, the defendant asserted that the trial judge’s failure to give the White jury instruction was reversible error. The Court of Criminal Appeals affirmed the convictions. We hold that a White jury instruction is not required when a defendant is charged with the offenses of kidnapping and robbery of different victims.

In 1993, the Defendant, Nickelle N. Jackson, pleaded guilty to three counts of aggravated robbery, one count of unlawful carrying a weapon, one count of theft of property valued between $10,000 and $60,000, and two counts of theft of property valued over $500. In accordance with the plea agreement, the trial court sentenced the Defendant as a Range II, multiple offender, to a total effective sentence of twelve years in confinement. In 2014, the Defendant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed based upon its finding that the Defendant’s illegal sentence had expired in 2006. On appeal, the Defendant contends that the trial court erred when it dismissed his motion because his sentence contravenes the Tennessee Criminal Sentencing Reform Act of 1989. He explains that the trial court erred when it ordered his sentences to run concurrently because he had been released from jail on bail for some of the offenses when he committed the other offenses, which would require consecutive sentencing. After review, and for the reasons stated below, we reverse the trial court’s judgment and remand the case for appointment of counsel and a hearing on the Defendant’s Rule 36.1 motion.

For reasons stated in State v. Kevin M. Thompson, No. E2014-01358-CCA-R3-CD, 2015 WL 1548852 (Tenn. Crim. App. Apr. 1, 2015), and State v. Sean Blake, No. W2014-00856-CCA-R3-CO, 2015 WL 112801 (Tenn. Crim. App. Jan. 8, 2015), I would remand this matter to the trial court for appointment of counsel if the Defendant is indigent and an evidentiary hearing pursuant to Tennessee Rule of Criminal Procedure 36.1. Accordingly, I respectfully dissent.

The defendant, Philander Butler, appeals the summary dismissal of his Rule 36.1 Motion to Correct an Illegal Sentence. The trial court summarily dismissed the motion, finding that the challenged 1989 and 1990 sentences had expired and that “the intent of Rule 36.1 was not to revive old cases.” On appeal, the defendant argues that the rule states that he may challenge an illegal sentence “at any time.” He also argues that because he erroneously filed his motion in the wrong division of the Criminal Court for Shelby County that the trial court did not have jurisdiction to deny his motion. Following our review, we affirm the judgment of the trial court.