APPELLATE COURT OPINIONS

The appellant, Connie Sue Messick, pled guilty in the Coffee County Circuit Court to vehicular homicide by intoxication, one count of reckless aggravated assault, and four counts of vehicular assault. The trial court sentenced the appellant to a total effective sentence of sixteen years in the Tennessee Department of Correction. On appeal, the appellant challenges the length and manner of service of the sentences. Upon review, we affirm the judgments of the trial court but remand for entry of a corrected judgment to reflect that reckless aggravated assault is a Class D felony.

The petitioner, Timothy L. Jefferson, appeals the summary dismissal of his petition for the writ of error coram nobis. He is currently serving a forty-year sentence in the Department of Correction as a result of his 2001 guilty plea to second degree murder. On appeal, the petitioner contends that the coram nobis court’s dismissal was in error for multiple reasons, including that: (1) the court failed to give proper consideration to veracity of the newly discovered evidence; (2) the court reached the wrong conclusion as to whether the newly discovered evidence may have affected the result; (3) the petition was not time-barred because the statute of limitations was waived; and (4) the issue had not been previously litigated. Following review of the record, we affirm the dismissal of the petition.

We granted review in this case to determine whether a jury instruction based on our decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), must be given when a defendant is charged with the offenses of kidnapping and aggravated burglary. The defendants threatened the victim with guns and took her purse as she was getting into her car outside of her residence. The defendants forced the victim to enter her home and followed her inside. They forced the victim to sit on her couch while they ransacked her home. Police apprehended the defendants as they attempted to flee. The defendants were indicted for aggravated robbery of the victim’s purse, aggravated burglary of the victim’s home, especially aggravated kidnapping, and possession of a firearm with the intent to go armed during the commission of a dangerous felony. A jury convicted the defendants of all charges. The trial court set aside the guilty verdicts for especially aggravated kidnapping and aggravated burglary, finding that these convictions, in conjunction with the aggravated robbery convictions, violated principles of due process. The trial court also dismissed the firearms convictions. The Court of Criminal Appeals reversed and reinstated the verdicts. Upon appeal, we remanded the case to the Court of Criminal Appeals for consideration in light of our holding in State v. Cecil, 409 S.W.3d 599 (Tenn. 2013), which made our holding in White applicable to cases in the appellate process. On remand, the intermediate appellate court reached the same result. We hold that a kidnapping charge accompanied by an aggravated burglary charge does not, standing alone, warrant a White jury instruction. However, the trial court erred by not giving a White jury instruction based on the especially aggravated kidnapping and aggravated robbery charges, but the error was harmless beyond a reasonable doubt.

Vermaine M. Burns (“the Defendant”) was convicted of several sexual offenses, all stemming from illicit Facebook chats (“chats”) and emails between himself and the victim, K.P. On appeal, the Defendant raises three issues: (1) whether the trial court abused its discretion by admitting into evidence the Defendant’s chats with the victim and an emailed photo of a penis; (2) whether the evidence was sufficient to support the jury’s finding that the Defendant was the author of the communications; and (3) whether the trial court erred by prohibiting the Defendant from referring to a fake Facebook profile created by the Defendant’s stepdaughter. After a review of the record and applicable law, we affirm the judgments of the trial court.

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant’s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

This appeal arises out of a negligence action brought against a railroad for damage to the plaintiffs’ home and storage building during a flood in and around Memphis, Tennessee. Railroad moved for summary judgment on the ground that the negligence claim was preemptioned by federal law and that plaintiff could not prove causation. The trial court initially denied the railroad’s motion but, on reconsideration, granted summary judgment; plaintiffs appealed. We reverse the grant of summary judgment and remand for further proceedings.

The Defendant-Appellant, Narrell Christopher Pierce, was convicted by a Davidson County Criminal Court jury of attempted aggravated robbery, attempted second degree murder, employment of a firearm during the commission of a dangerous felony, and unlawful possession of a handgun by a felon.  The trial court sentenced the Defendant to an effective sentence of 51 years’ confinement.  On appeal, the Defendant-Appellant argues: (1) the trial court erred in denying the Defendant’s motions to suppress (a) the victim’s identification testimony, (b) evidence obtained as a result of the Defendant’s arrest, and (c) evidence obtained pursuant to a search warrant; (2) the trial court erred in refusing to allow the Defendant to cross-examine a witness about alleged acts of untruthfulness; (3) the trial court erred in denying the Defendant’s motion to dismiss count 3 of the indictment and allowing the State to amend that count of the indictment; (4) the evidence is insufficient to sustain the Defendant’s convictions of attempted second degree murder and employing a firearm during the commission of a dangerous felony; and (5) the trial court abused its discretion in sentencing the Defendant as a career offender to 51 years’ confinement.  Upon review, we affirm the judgments of the trial court.

I concur with the results and most of the reasoning in the majority opinion. I respectfully disagree, however, with the majority’s conclusion that the trial court abused its discretion when it failed to grant Defendant Swift’s motion to sever. In my view, neither Rule 8 or Rule 14 of the Rules of Criminal Procedure required the trial court to grant Defendant Swift’s motion to sever. Furthermore, I am satisfied that the trial court gave clear and correct instructions on how the jury was to consider the evidence as to each Defendant. The manner in which the evidence was admitted by the trial court did not so prejudice Defendant Swift as to require severance.

The Petitioner, Candance Carol Bush, appeals as of right from the denial of her petition for post-conviction relief.  The Petitioner contends that she received ineffective assistance of counsel based upon trial counsel’s advice that she not testify at trial and counsel’s failure to file a motion to sever the Petitioner’s case from that of her co-defendant.  The Petitioner further contends that the cumulative effect of these errors undermines the confidence in the outcome of her trial such that she is entitled to post-conviction relief.  After a thorough review, we affirm the judgment of the post-conviction court.

A Shelby County Criminal Court Jury convicted the appellants, Christopher Swift and Marquavious Houston, of first degree premeditated murder; attempted first degree premeditated murder, a Class A felony; and employing a firearm during the commission of a dangerous felony, a Class C felony. After a sentencing hearing, they received effective sentences of life plus twenty-six years. On appeal, the appellants contend that (1) the trial court erred by refusing to sever their trials; (2) the trial court erred by allowing the State to display an assault rifle for demonstrative purposes when the rifle was not used to commit the crimes; (3) the trial court erred by allowing the surviving victim to testify after the police destroyed his recorded statement; and (4) the evidence is insufficient to support the convictions. In addition, Houston contends that (5) the State’s failure to name the predicate felony in count 3 of the indictment, employing a firearm during the commission of a dangerous felony, voids the charge and (6) that the trial court erred by ordering consecutive sentencing. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court committed reversible error in Swift’s case by refusing to sever the appellants’ trials and by allowing the State to show the jury an assault rifle that was not used in the crimes. Therefore, his convictions are reversed, and his case is remanded to the trial court for a new trial. Houston’s convictions and sentences, however, are affirmed.

A Lauderdale County jury convicted the Defendant-Appellants, Gregory Nelson and Tina Nelson, of the charged offenses of first degree felony murder during the perpetration of aggravated child abuse and aggravated child abuse. Tina Nelson was sentenced to life imprisonment for the first degree felony murder conviction and to fifteen years for the aggravated child abuse conviction, and Gregory Nelson was sentenced to life imprisonment for the first degree murder conviction and to twenty years for the aggravated child abuse conviction. In this consolidated appeal, Gregory and Tina Nelson argue that the evidence is insufficient to sustain their convictions. Upon review, we affirm the judgments of the trial court.

Appellant, Danny Steve Wilkerson, was convicted by a jury of three drug-related offenses and received an effective sentence of ten years as a Range I, standard offender in the Tennessee Department of Correction. He appeals, challenging the sufficiency of the evidence supporting his convictions and the nature and length of his sentences. After a careful review of the record and the applicable law, the judgments of the trial court are affirmed.

I concur in the Court’s opinion in this case authored by Chief Justice Lee. That opinion represents the correct analysis and result based upon the existing analytical framework currently utilized by this Court in this area of the law. Although I agree that this is not the case to revisit the issue at this point in time, I write separately to express my concern about this existing analytical framework.

We granted permission to appeal in this case to address whether the evidence established that the plaintiff police officer was discharged solely in retaliation for conduct protected under the Tennessee Public Protection Act, Tennessee Code Annotated section 50-1-304, sometimes called the Whistleblower Act. The chief of police for the defendant municipality had the plaintiff police officer “fix” a traffic ticket for a relative. After the plaintiff officer complained to the mayor that the police chief had pressured him into illegal ticket fixing, the police chief discharged the plaintiff. The defendant municipality claimed that it terminated the officer’s employment because he violated the chain of command by reporting the ticket fixing to the mayor, and also because he undermined the chief’s authority with the other officers in the police department. We hold that the municipality’s assertion that it discharged the plaintiff for going outside of the chain of command amounts to an admission that it retaliated against the plaintiff for refusing to remain silent about illegal activities, conduct that is protected under the Tennessee Public Protection Act. After a review of the record, we also hold that the evidence preponderates in favor of a finding that the second reason proffered by the municipality for the officer’s discharge, that he undermined the police chief’s authority, is pretext for retaliation. Accordingly, we hold that the plaintiff was discharged solely in retaliation for conduct protected under the Public Protection Act.

The Defendant, Christopher Lee Goins, appeals as of right from the Blount County Circuit Court’s revocation of his community corrections sentences and order of incarceration. The Defendant contends that the trial court abused its discretion in revoking his community corrections sentences and ordering his original sentences into effect. Discerning no error, we affirm.

We granted permission to appeal in this case to address whether the evidence established that the plaintiff police officer was discharged solely in retaliation for conduct protected under the Tennessee Public Protection Act,Tennessee Code Annotated section 501-304, sometimes called the Whistleblower Act. The chief of police for the defendant municipality had the plaintiff police officer “fix” a traffic ticket for a relative. After the plaintiff officer complained to the mayor that the police chief had pressured him into illegal ticket fixing, the police chief discharged the plaintiff. The defendant municipality claimed that it terminated the officer’s employment because he violated the chain of command by reporting the ticket fixing to the mayor, and also because he undermined the chief’s authority with the other officers in the police department. We hold that the municipality’s assertion that it discharged the plaintiff for going outside of the chain of command amounts to an admission that it retaliated against the plaintiff for refusing to remain silent about illegal activities, conduct that is protected under the Tennessee Public Protection Act. After a review of the record, we also hold that the evidence preponderates in favor of a finding that the second reason proffered by the municipality for the officer’s discharge, that he undermined the police chief’s authority, is pretext for retaliation. Accordingly, we hold that the plaintiff was discharged solely in retaliation for conduct protected under the Public Protection Act.

The defendant, Thomas William Whited, was convicted of nine counts of especially aggravated sexual exploitation of a minor, a Class B felony; one count of attempted especially aggravated sexual exploitation of a minor, a Class C felony; thirteen counts of observation without consent, a Class A misdemeanor; and one count of attempted observation without consent, a Class B misdemeanor. The defendant received an effective sentence of twenty-two years. On appeal, the defendant argues that: (1) the evidence is insufficient to support a finding that the defendant used a minor in the production of material that included the minor engaging in “sexual activity”; (2) the trial court erred in refusing to provide the jury with his proposed special instructions; (3) the trial court erred in refusing to permit cross-examination of the victims at the sentencing hearing; and (4) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the criminal court.

I must respectfully disagree with the conclusion reached by the majority. Let me begin by recognizing that surreptitiously recording a minor in the privacy of her bedroom or bathroom while she undresses is reprehensible, abhorrent, and criminal. See Tenn. Code Ann. §39-13-605. However, whether this conduct rises to the level necessary to sustain the convictions for especially aggravated sexual exploitation of a minor is another question. For this offense, the State was required to show that the minor in the videos was engaged in sexual activity. As applicable here, the statutory definition of sexual activity required the State to prove that the video contained the lascivious depiction of the victim’s breasts, buttocks, and/or genitalia. After applying the guidelines outlined in Dost and given the below reasoning and authority, I am unable to conclude that the images depicted in the video were lascivious. Therefore, I would reverse the convictions of especially aggravated sexual exploitation of a minor in this case. In reaching this conclusion, I would apply the sixth Dost factor, whether the visual depiction is intended or designed to elicit a sexual response in the viewer, objectively rather than subjectively, as this court previously held in State v. John Michael Whitlock, No. E2010-00602-CCA-R3-CD, 2011 WL 2184966, at *7 (Tenn. Crim. App. June 6, 2011) (reviewing whether a videotape constituted “lascivious exhibition” of a girl’s pubic area and concluding that the sixth Dost factor must be analyzed objectively rather than subjectively). Finally, because there is sufficient evidence for a reasonable jury to conclude that the Defendant attempted to capture lascivious images on the video, I would reduce his convictions to attempted especially aggravated sexual exploitation of a minor and remand this matter to the trial court for re- sentencing.

Charles Riley, Jr. (“the Defendant”) appeals as of right from the trial court’s order revoking his probation, arguing the trial court abused its discretion when it determined that he violated probation.  Upon review, we affirm the judgment of the trial court.

The defendant, Craig Michael Barbee, was convicted of attempted second degree murder, especially aggravated robbery, two counts of aggravated robbery, employing a firearm during the commission of a dangerous felony, and two counts of aggravated assault, which were merged with the aggravated robbery convictions. He received an effective sentence of 106 years. On appeal, the defendant argues that the trial court erred by not granting his motion for change of venue and in sentencing. Following our review, we affirm the judgments of the trial court.

The Petitioner, Brian Roberson, appeals the Williamson County Circuit Court’s denial of his petition for writ of habeas corpus.  The Petitioner previously entered guilty pleas to two counts of sale of cocaine (counts 1 and 3) and possession of cocaine (count 5).  On appeal, he argues that he is entitled to withdraw his guilty pleas because the illegal sentences in counts 1 and 3 were a material, bargained-for element of his plea agreement.  Upon review, we affirm the judgment of the habeas corpus court.  However, we remand this matter to the original court of conviction for entry of corrected judgments consistent with this opinion.

Defendant, Gregory Lee Bray, was indicted in two separate cases for delivering Schedule IV substances. After pleading guilty in two separate cases to a total of two counts of delivery of a Schedule IV substance, Defendant was sentenced to an effective sentence of twenty years. Defendant appeals, challenging the trial court‟s imposition of consecutive sentences and denial of an alternative sentence. After a review, we determine there is no evidence that the trial court abused its discretion in sentencing Defendant to an effective sentence of twenty years or that the trial court improperly denied alternative sentencing. Consequently, the judgments of the trial court are affirmed.

The petitioner, Deshaun Jantuan Lewis,appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that he received ineffective assistance of appellate counsel.  Based upon our review, we affirm the denial of the petition.

Petitioner, Kevin Lee Johnson, was convicted of being a habitual motor vehicle offender, driving under the influence, and felony failure to appear, for which he received an effective sentence of nine years, six months to be served in the Tennessee Department of Correction.  He filed a petition for post-conviction relief alleging, inter alia, ineffective assistance of counsel for failing to provide him with a copy of the order declaring him to be a habitual motor vehicle offender.  The post-conviction court denied relief, and petitioner presents the same issue on appeal.  Following our review, we affirm the judgment of the post-conviction court.