APPELLATE COURT OPINIONS

The Defendant was found guilty by a Sullivan County Criminal Court jury of five counts of rape of a child involving the daughter of the Defendant’s then-girlfriend. See T.C.A. § 39-13-522 (1997). She was sentenced as a Range I offender to twenty years for each conviction to be served at 100% as a child rapist. The trial court ordered partial consecutive sentencing, for an effective sixty-year sentence. In the Defendant’s previous appeal, she contended that: (1) the evidence is insufficient to support the convictions; (2) there was a material variance between the presentment, the bill of particulars, the election of offenses, and the proof; (3) the trial court erred in denying her motion to dismiss the charges due to pre-accusation delay; (4) the court erred in declining to conduct an in camera review of Department of Children’s Services (DCS) records; and (5) the court erred in imposing consecutive sentences. State v. Gwendolyn Hagerman, No. E2011-00233-CCA-R3-CD (Tenn. Crim. App. June 4, 2013), perm. app. granted, case remanded (Tenn. Nov. 13, 2013). After we affirmed the Defendant’s convictions, the Tennessee Supreme Court granted her application for permission to appeal and remanded the case in order for this court to order that the record be supplemented with the victim’s DCS records and for reconsideration of the case in light of the supplemented record. State v. Gwendolyn Hagerman, No. E2011-00233-CCA-R3-SC (Tenn. Nov. 13, 2013) (per curiam) (order). Having ordered that the record be supplemented and having reviewed the DCS records, we affirm the judgments of the trial court.

Amir Karshenas, doing business as American Bonding Company, appeals his suspension as a bondsperson in the Twenty-First Judicial District.  Because the trial court did not provide the appellant notice pursuant to Tennessee Code Annotated section 40-11-125(b) (Supp. 2011), we vacate the suspension and remand for further proceedings consistent with this opinion.

The petitioner, Jonathan Wesley Stephenson, appeals the dismissal of his habeas corpus petition challenging the legality of his sentence and conviction for conspiracy to commit first degree murder.  After a thorough review of the record, we conclude that the petition was properly dismissed for failure to abide by the procedural requirements of Tennessee Code Annotated section 29-21-107(b)(4), and we affirm the judgment of the habeas corpus court.

The petitioner, Lorenza Zackery, appeals the denial of his petition for post-conviction relief.  The petitioner pled guilty to two counts of rape of a child and received concurrent sentences of twenty years.  He contends that his plea was not knowingly and voluntarily entered. He claims he was coerced into accepting the plea by trial counsel’s actions and deficient performance.  Following review of the record, we affirm the denial of relief.
 

The Defendant, Leslie Dawn Hurst, pled guilty to seven counts of theft of property valued at $500 or less, a Class A misdemeanor; one count of possession of drug paraphernalia, a Class A misdemeanor; and one count of failure to appear, a Class E felony. See Tenn. Code Ann. §§ 39-14-103, -14-105, -16-609, -17-425. The trial court imposed an effective sentence of four years, eleven months, and twenty-six days to be served in confinement. In this appeal as of right, the Defendant contends (1) that the trial court erred in denying her request for alternative sentencing and (2) that the trial court erred by imposing partial consecutive sentences. Following our review, we affirm the judgments of the trial court.

We granted permission to appeal to determine whether a provision of the unlawful detainer statute, which requires that a tenant appealing to the circuit court from a general sessions court’s judgment in favor of a landlord must post a bond equal to one year’s rent of the premises, applies regardless of whether the tenant has surrendered possession of the property prior to the appeal. We hold that the plain language of Tennessee Code Annotated section 29-18-130(b)(2) (2012) does not require that a tenant appealing to the circuit court from an adverse general sessions court judgment in an unlawful detainer action post a bond corresponding to one year’s rent of the premises if the tenant has surrendered possession of the premises prior to the appeal. Accordingly, the cost bond that the tenants have already posted pursuant to Tennessee Code Annotated section 27-5-103(a) (2000) is sufficient to perfect their appeal and confer subject matter jurisdiction on the Circuit Court. We affirm the Circuit Court’s judgment denying the landlords’ motion to dismiss and remand the case to the Circuit Court for further proceedings consistent with this decision.

The minor beneficiary of a $100,000 life insurance policy filed suit against his financial guardian and the insurance company after the guardian misappropriated the insurance proceeds. The trial court entered judgments in favor of the minor against both the guardian and the insurance company. On appeal by the insurance company, the Court of Appeals affirmed, holding that the insurance company breached its contractual duties by entrusting the proceeds to the guardian. The insurance company then applied for permission to appeal to this Court, contending that it could not be held liable for the loss to the minor because it had relied upon the validity of a juvenile court order of guardianship. Because the insurance company acted in good faith when it relied upon a facially valid court order establishing a financial guardianship in making payment of the life insurance proceeds, it is not liable for breach of contract. The judgment of the Court of Appeals is, therefore, reversed, and the claim against the insurance company is dismissed.

This appeal arises from the modification of a parenting plan in a post-divorce action. In the initial Permanent Parenting Plan, Mother was designated the primary residential parent of their son. Four years later, Father filed a Petition to Modify the Parenting Plan, alleging that multiple material changes in circumstances had occurred and that it was in the child’s best interest for Father to be the primary residential parent. While the petition was pending, Mother was involuntarily committed to a psychiatric facility; immediately thereafter, on Father’s pendente lite motion, the trial court designated Father as primary residential parent with sole decision-making authority pending further adjudication. Father then amended his Petition to enumerate additional material changes. Some eight months later, the trial court conducted a trial. The court found that Mother’s mental health, Mother’s attitude and untoward actions directed at Father, the child’s manipulation and power struggles with his parents; the child’s enrollment in an out-of-state boarding school, and multiple other factors demonstrated that a material change in circumstances had occurred and that it was in their son’s best interest for Father to serve as the primary residential parent with sole decision-making authority. Mother appeals claiming the trial court erred in determining that a material change in circumstances existed and that a modification was in the child’s best interest. We affirm.

Appellant, Archie Tyrone Wilson, was in custody in the State of Tennessee. In July 2012, the State of Florida submitted a request under the Interstate Compact on Detainers for custody of Appellant in connection with a charge of sexual battery. Appellant requested a hearing. At the conclusion of the hearing, the trial court ordered his transfer to Florida for prosecution. On appeal, Appellant argues that the trial court erred. After a thorough review of the record on appeal, we conclude that the trial court did not err. Therefore, we affirm the trial court’s order of transfer.

A Shelby County Criminal Court Jury convicted the appellant of second degree murder. The trial court sentenced him as a Range II, multiple offender to thirty-seven years in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence is not sufficient to sustain his conviction of second degree murder. He argues that the jury should have found that he was acting in self-defense or, in the alternative, that he committed voluntary manslaughter. Upon review, we affirm the judgment of the trial court.

The Defendant, Rodney Turner, was convicted by a jury of two counts of attempted first degree murder, a Class A felony, and one count of employing a firearm during the commission of a dangerous felony, a Class C felony. See Tenn. Code Ann. §§ 39-12-101, -13-202, -17-1324. The trial court sentenced the Defendant to concurrent sentences of forty years for both counts of attempted first degree murder. The trial court also imposed a ten-year sentence for the employment of a firearm conviction and ordered that six years of that sentence be served at one hundred percent. The trial court ordered that the sentence for the employment of a firearm conviction be served consecutively to the sentences for the attempted first degree murder convictions, for a total effective sentence of fifty years. In this appeal as of right, the Defendant contends that the trial court erred by not requiring the State to produce a prior statement made by one of the State’s witnesses. Following our review, we affirm the judgments of the trial court.

Residuary legatees appeal from the trial court’s denial of their motion to disallow compensation for executrix and estate’s attorney. Discerning no error, we affirm.

Inmate was serving a 47-year sentence for rape and attempted first degree murder. Inmate had a parole hearing in 2011, when he had 19 years of his sentence left to serve. Parole was denied, and Inmate’s next parole hearing was scheduled to take place six years later. Inmate challenged Parole Board’s decision to defer his next parole hearing for six years. The trial court held the Board acted lawfully in deferring Inmate’s next parole hearing for six years. We affirm the trial court’s judgment on appeal. Board members serve for staggered six-year terms, and Inmate will not be denied the opportunity for new Board members to review his request for parole six years from the date of his last hearing.

The Petitioner, Louis Mayes, contends that both his transfer counsel and his trial/appellate counsel rendered the ineffective assistance of counsel in the juvenile and trial courts, respectively, and that the post-conviction court erred in denying post-conviction relief. Specifically, he alleges that transfer counsel failed to properly prepare for the transfer hearing and that his trial/appellate counsel failed to include a key witness at the suppression hearing and was deficient on appeal for failing to challenge the trial court’s denial of his suppression motion. Upon consideration of the relevant authorities and the record, we affirm the judgment of the post-conviction court.

The Defendant-Appellant, Aaron Tate, was convicted by a Shelby County jury of one count of attempted especially aggravated robbery; one count of especially aggravated burglary; one count of employment of a firearm during a felony offense; one count of especially aggravated kidnapping; one count of aggravated kidnapping; two counts of aggravated assault; and one count of facilitation to commit aggravated assault. The trial court sentenced Tate as a Range II, multiple offender and ordered each of his sentences to be served consecutively, for an effective sentence of one-hundred-thirty-eight years’ imprisonment. In this appeal, Tate argues that the jury was not provided with an instruction consistent with State v. White, 362 S.W.3d 559 (Tenn. 2012); therefore, his “convictions for especially aggravated kidnapping and aggravated kidnapping offend due process.” He further argues that the trial court imposed an excessive sentence. Upon our review, we conclude that the absence of an instruction pursuant to White was harmless beyond a reasonable doubt as to Tate’s convictions for attempted especially aggravated robbery, aggravated burglary, and facilitation of aggravated assault. However, the lack of the White instruction was reversible error as to his convictions for aggravated assault charged in counts six and seven. Accordingly, we reverse Tate’s kidnapping convictions charged in counts four and five and remand the matter for a new trial as to those offenses. We modify count two and reduce the especially aggravated burglary conviction to aggravated burglary and remand for resentencing on this conviction. We reverse Tate’s conviction for employing a firearm during the commission of a dangerous felony offense and remand for a new trial on count three. In all other respects, the judgments of the trial court are affirmed.

The defendant, Archie Elliott, also known as Archie Elliott, III, was indicted for two counts of aggravated cruelty to animals while he was employed by the Memphis Animal Shelter. He entered open pleas of guilty to these offenses and was sentenced, in each count, to two years confinement, with the sentences to be served concurrently. On appeal, he asserts that the trial court erred in both the length and manner of service of the sentences, which were to be served, as a Range I, standard offender, at 30%; that the court showed bias in statements regarding the court’s feelings regarding animals; and that the court erred in weighing the impact of letters opposing alternative sentencing. Following our review, we affirm the judgments of the trial court.

The defendant, Jared Scott Aguilar, appeals from his Montgomery County Circuit Court jury convictions of six counts of sexual exploitation of a minor, see T.C.A. § 39-17-1003(a)(1), claiming that the trial court erred by denying his motion to suppress evidence seized pursuant to a search warrant, that the evidence was insufficient to sustain two of the convictions, that the counts of the indictment are multiplicitous, and that the 10-year effective sentence is excessive.  Discerning no error, we affirm the judgments of the trial court.

The defendant, James Allen Nix, was convicted by a Sumner County Criminal Court jury of burglary of a building other than a habitation and theft of property valued at $1000 to $10,000, both Class D felonies, and was sentenced by the trial court as a Range III, multiple offender to concurrent terms of eight years in the Department of Correction.  On appeal, he raises three issues relating to the trial court’s denial of his motion to suppress evidence obtained from his home pursuant to a search warrant.  The State argues that the defendant has waived consideration of these issues by his failure to include them in his motion for new trial.  We agree with the State.  Accordingly, we affirm the judgments of the trial court.

The defendant, Nasir Hakeem, was convicted after a bench trial of two counts of sexual battery, a Class E felony, in violation of Tennessee Code Annotated section 39-13-505 (2010).  On appeal, he challenges the sufficiency of the convicting evidence, pointing to inconsistencies in the testimony of the State’s witnesses.  After a thorough review of the record, we conclude that the evidence was sufficient to support the convictions and we accordingly affirm the judgment of the trial court.

The defendant, Douglas Ray Murrell, pled guilty to one count of driving a vehicle under the influence of an intoxicant in violation of Tennessee Code Annotated section 55-10-401(a)(1) (2010), a Class A misdemeanor; pled nolo contendere to one count of failure to maintain lane in violation of Tennessee Code Annotated section 55-8-123, a Class C misdemeanor; and pled guilty to one count of driving a vehicle with a blood alcohol concentration greater than 0.08 percent in violation of Tennessee Code Annotated section 55-10-401(a)(2), a Class A misdemeanor.  The trial court merged the two DUI convictions.  In pleading guilty to the DUI charges, the defendant reserved a certified question pursuant to Tennessee Rule of Criminal Procedure 37, challenging the trial court’s conclusion that the initial stop of his vehicle was supported by reasonable suspicion.  After reviewing the record, we affirm the judgment of the trial court.

The defendant, Jody Kyle Banks, pled guilty to driving under the influence of an intoxicant (second offense), a Class A misdemeanor, in violation of Tennessee Code Annotated section 55-10-401(a)(1) (2010).  He was sentenced to eleven months and twenty-nine days imprisonment, with fifty days to be served in jail and the remainder of the sentence to be served on probation.  In entering his guilty plea, the defendant reserved, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2),  a certified question of law challenging the initial stop of his vehicle based on a broken taillight. After a thorough review of the record, we conclude that this case is governed by the Tennessee Supreme Court’s decision in State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), and we accordingly affirm the judgment of the trial court.

The defendant, William Roger Henderson, III, pled guilty to two counts of attempted aggravated robbery,  Class C felonies.  The trial court sentenced him as a multiple offender  to serve nine years in the Department of Correction on each count, with the counts to run concurrently.  The trial court refused to give the defendant an alternative sentence, and the defendant appeals.  Having reviewed the record, we conclude that the trial court did not abuse its discretion in ordering the defendant’s confinement to prison, and we affirm the judgment of the trial court.

The issue presented in this premises liability case is whether a store owes a duty to protect its customer from a visibly intoxicated customer who was ordered to leave the store by store employees. A store patron sued a store for negligence after she was struck and injured in the store’s parking lot by a vehicle driven by another store patron. Store employees had refused to fill the other patron’s medical prescriptions because they believed she was intoxicated; she became belligerent, and store employees ordered her to leave the store knowing that she was alone and would be driving her vehicle. In response to the lawsuit, the store filed a motion to dismiss, contending that it did not have a legal duty to control the intoxicated patron after she left the store. The trial judge granted the store’s motion to dismiss. The Court of Appeals reversed, finding that the store owed the injured patron a duty of care to protect her from the intoxicated patron. Taking the plaintiffs’ allegations as true and drawing all reasonable inferences in her favor, we hold that the foreseeability of harm and the gravity of harm to the injured patron outweighed the burden placed on the store to protect the patron against that harm. Therefore, the store patron’s complaint contains sufficient allegations which, taken as true, establish that the store owed a duty of care to the injured patron. The trial court erred by granting the motion to dismiss.

I fully concur in the majority’s conclusion that Wal-Mart owed a duty of reasonable care to its customers to prevent them from suffering harm and that the trial court erred in granting Wal-Mart’s motion to dismiss. I write separately, however, to reaffirm my view that “any discussion of foreseeability in the context of duty encroaches upon the role of the finder of fact.” Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 372 (Tenn. 2009) (Holder, J., concurring and dissenting) (quoting Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 375 (Tenn. 2008) (Holder, J., concurring and dissenting)). See also Hale v. Ostrow, 166 S.W.3d 713, 720 (Tenn. 2005) (Holder, J., concurring and dissenting); Burroughs v. Magee, 118 S.W.3d 323, 338 (Tenn. 2003) (Holder, J., concurring and dissenting); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 92 (Tenn. 2000) (Holder, J., concurring).

The Defendant-Appellant, Mark Dunlap, appeals from the Sevier County Circuit Court’s order revoking his community corrections sentence. The Defendant previously entered guilty pleas to kidnapping, aggravated assault, attempted aggravated burglary, and vandalism. Pursuant to the plea agreement, the trial court sentenced the Defendant to an effective sentence of six years, which was suspended to time served with the balance of his sentence to be served in the community corrections program. On appeal, the Defendant argues that the trial court erred in ordering the Defendant to serve his sentences in confinement after revoking his community corrections and erred in imposing consecutive sentencing. Upon review, we affirm the judgment of the trial court.