APPELLATE COURT OPINIONS

In this wrongful dismissal case, Sonya Brooks (“Brooks”) sued her former employer Roane County and county officials Ron Woody and Gloria Wright (“Defendants”). In a March 9, 2017 order, the Circuit Court for Roane County (“the Trial Court”) dismissed Brooks’ lawsuit against Defendants with prejudice. The Trial Court reserved taxation of costs for a later date. Brooks filed a notice of appeal on January 10, 2018. Defendants argue that Brooks’ appeal was filed untimely. Brooks contends that the March 9, 2017 order was not final and appealable because it reserved the issue of costs. We hold that, in keeping with longstanding Tennessee case law, taxation of costs is incidental and not a factor in determining whether a judgment is final. As Brooks’ notice of appeal was not filed timely, we are constrained to dismiss her appeal for lack of jurisdiction.

The Defendant, Jerry Wade Sherrill, was convicted by a Wayne County Circuit Court jury of two counts of rape, Class B felonies, and two counts of incest, Class C felonies. See T.C.A. §§39-13-503 (2014) (rape), 39-15-302 (2014) (incest). The trial court sentenced the Defendant to five years for the incest convictions and to eight years for the rape convictions, with all sentences to be served concurrently. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred in denying his claim pursuant to Brady v. Maryland based upon the State’s failure to disclose alleged incentives offered to the codefendant, (3) the trial court erred in denying his motion to dismiss pursuant to State v. Ferguson based upon lost evidence, (4) the trial court erred in denying his motion to dismiss based upon alleged prosecutorial misconduct, and (5) he is entitled to a new trial due to cumulative errors in the conviction proceedings. The State raises an additional allegation of error based upon the trial court’s reduction of the Defendant’s rape sentences from ten to eight years. We affirm the incest judgments and the rape convictions, but we remand for entry of amended judgments for the rape convictions.

The Petitioner, James Allen Pollard, appeals the post-conviction court’s dismissal of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel. After thorough review, we affirm the dismissal of the petition.

The Petitioner, Robert Wayne Garner, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that the post-conviction court abused its discretion by not allowing one of his witnesses to finish testifying at the evidentiary hearing. After review, we dismiss this appeal for lack of jurisdiction.

The Defendants, Alexander R. Vance and Damonta M. Meneese, were each convicted of second degree murder, first-degree murder in perpetration of a felony, especially aggravated robbery, and three counts of aggravated assault. As to each, the trial court merged the second degree murder conviction into that for first-degree murder, imposing an effective sentence of life imprisonment plus 21 years. In these consolidated appeals, both defendants argue that the trial court erred in allowing hearsay testimony by a State witness regarding a statement made by a co-defendant whose charges had been severed from the two defendants in this matter. Additionally, the Defendant Vance argues that the evidence is insufficient to sustain his convictions, and the Defendant Meneese argues that the trial court erred by ordering partial consecutive sentencing. Following our review, we affirm the judgments of the trial court as to both defendants.

The Defendant, Demetrius Grimes, was convicted of two counts of attempted first-degree murder; five counts of employing a firearm during a dangerous felony; four counts of employing a firearm during the commission of a dangerous felony with a prior dangerous felony conviction; two counts of attempted especially aggravated robbery; two counts of attempted carjacking; one count of attempted first-degree murder with serious bodily injury; two counts of assault; and one count of simple possession of a controlled substance, third offense. The sentences for the attempted first-degree murders of Michael Dixon and Carl Chesney were ordered to be served consecutively to each other, as well as to both of the 10-year sentences for employing a firearm during a dangerous felony, which were, in turn, to be served consecutively to each other, resulting in a total effective sentence of sixty years. Further, all the sentences were to be served consecutively to a sentence for a prior conviction. On appeal, the Defendant asserts that, since the State argued at trial that Michael Dixon was the intended target of the shots, the attempted first-degree murder conviction for the shooting of Carl Chesney could not stand. Further, the Defendant argues on appeal that the multiple convictions for employment of a firearm during the commission of multiple dangerous felonies cannot stand, for the evidence showed that the Defendant used only one weapon, thus supporting only a single firearm conviction; and that the trial court erred in ordering consecutive sentencing. The State agrees on appeal that the court erred as to sentencing in Counts 15 through 18, which enhanced the Defendant’s sentences for employing a firearm during the commission of four attempted dangerous felonies, for the prior felonies upon which the enhancement was based, were not “dangerous” felonies, as required by statute, but, rather, were simple drug possession convictions. Accordingly, we reverse the convictions as to Counts 15 through 18 and dismiss those charges. We reinstate the convictions for Counts 2, 4, 8, 10 and 12, which were merged into Counts 15 through 18, and remand for entry of amended judgments. We conclude that the other issues raised on appeal by the Defendant are without merit.

The Defendant, Jeremy Arthur Kimble, received an effective thirty-five-year sentence for his guilty-pleaded convictions to four counts of rape of a child, two counts of rape, and one count of continuous sexual abuse of a child. The Defendant appeals, arguing that the trial court erred in enhancing his sentencing terms for his rape of a child convictions above the minimum in the range. The Defendant contends that the trial court improperly applied certain enhancement factors and failed to apply a pertinent mitigating factor. Following our review of the record, we affirm the judgments of the trial court given that the Defendant held and violated a position of trust as the victim’s step-father, that the offenses were committed to gratify the Defendant’s desire for pleasure or excitement, and that the repeated abuse resulted in an unwanted pregnancy. However, in accordance with this opinion, we remand the case for entry of corrected judgment forms and for additional judgment forms for each count of the indictment.

The Appellant, Robert Derrick Johnson, was found guilty of robbery, and the trial court sentenced the Appellant as a Range II multiple offender to ten years in the Tennessee Department of Correction. On appeal, the Appellant contends that he was denied his constitutional right to a speedy trial and that the trial court erred by declaring a mistrial in his first trial; therefore, his conviction following a second trial violates the principles of double jeopardy. Upon review, the judgment of the trial court is affirmed.

This post-divorce dispute concerns the enforcement of a retirement benefits provision in a marital dissolution agreement. After the defendant retired, he refused to pay any portion of his retirement benefits to his ex-wife based on his interpretation of their marital dissolution agreement. His ex-wife disagreed with his interpretation and petitioned the trial court to enforce their agreement. Both parties moved for summary judgment. The trial court denied the defendant’s motion and granted his ex-wife’s cross-motion. Upon review, we affirm the trial court in all respects and award the ex-wife her attorney’s fees incurred on appeal.

Ex-husband filed a petition for modification of alimony of $1,000 each month to ex-wife, claiming a material and substantial change in circumstances. Ex-wife filed a counter petition to increase the alimony. The trial court found that neither party met their burden of proof and awarded attorney’s fees to the ex-wife for the expense of defending exhusband’s petition. Ex-husband subsequently filed two motions to alter or amend. The trial court denied both of these motions and awarded additional attorney’s fees to ex-wife for defending the motions. Ex-husband timely appeals. We affirm.

After a jury trial, Kristina Cole was convicted of conspiracy to possess methamphetamine with the intent to sell in a drug-free zone in count one, conspiracy to possess methamphetamine with the intent to deliver in a drug-free zone in count two, facilitation of possession of methamphetamine with the intent to sell in a drug-free zone in count three, and possession of methamphetamine with the intent to deliver in a drug-free zone in count four. The jury found Montez Mullins guilty of facilitation of conspiracy to possess methamphetamine with the intent to sell in a drug-free zone in count one and facilitation of conspiracy to possess methamphetamine with the intent to deliver in a drug-free zone in count two. Defendant Cole received a total effective sentence of thirteen and one-half years in the Tennessee Department of Correction. Defendant Montez received a total effective sentence of thirty years as a career offender. On appeal, both Defendant Cole and Defendant Montez argue that the evidence at trial was insufficient for a rational juror to have found them guilty beyond a reasonable doubt. Additionally, Defendant Cole argues that the trial court erred by allowing Detective Gaia and Investigator Brown to speculate about the meaning of text messages between Defendant Cole and Defendant Jason White. After a thorough review of the facts and applicable case law, we affirm the judgments of the trial court.

The Petitioner, Heather Rogers McCollum, appeals from the Marshall County Circuit Court’s denial of her petition for post-conviction relief. The Petitioner contends that she received ineffective assistance of counsel because (1) trial counsel “did not move to suppress her confession at trial”; and (2) appellate counsel did not “address the issue of the physical facts rule in his appellate brief.” Discerning no error, we affirm the judgment of the post conviction court.

A Shelby County Criminal Court Jury convicted the Appellant, Antonio Benson, of first degree premeditated murder, and the trial court sentenced him to life. On appeal, the Appellant contends that the trial court erred by refusing to instruct the jury on selfdefense, that the trial court erred by refusing to admit evidence about a prior violent act committed by the victim, that the trial court erred by preventing him from sitting at counsel table during the trial, and that the evidence is insufficient to support the conviction. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court erred by failing to instruct the jury on self-defense and that the State failed to show the error was harmless. Accordingly, the Appellant’s conviction is reversed, and the case is remanded to the trial court for a new trial.

I concur in the affirmance of the Circuit Court for Hamilton County’s denial of the petition of Dr. Kerry Douglas Friesen for modification of his alimony obligation and the award of attorney’s fees to Ms. Beverley Joy Friesen. I write separately to address the authority under which the trial court awarded attorney’s fees.

Petitioner, Derrick Pierce, appeals the denial of his post-conviction petition. Petitioner argues that he received ineffective assistance of counsel at trial which forced him to plead guilty after the trial began, and the State had presented proof. Following a review of the briefs of the parties and the entire record, we affirm the judgment of the post-conviction court.

The Petitioner, James Carroll, filed a petition seeking post-conviction relief from his convictions of aggravated assault and driving under the influence (DUI), second offense and effective four-year, six-month sentence. In the petition, the Petitioner alleged that (1) the State violated his due process rights by failing to collect and preserve evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and that (2) his trial counsel was ineffective (a) by failing to challenge the State’s Ferguson violation and (b) by advising the Petitioner to waive his motion for new trial and his direct appeal. Upon review, we affirm the judgment of the post-conviction court.

Plaintiff appeals the trial court’s order granting summary judgment to the defendant on a premises liability claim. Because the plaintiff offered no evidence to support an essential element of her premises liability claim at the summary judgment stage, we affirm.

The Petitioner, Narrell Pierce, filed for post-conviction relief from his convictions 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 Petitioner alleged that his trial counsel was ineffective by (1) failing to challenge the sufficiency of the evidence supporting his attempted aggravated robbery conviction, (2) failing to object to his co-defendant’s testimony, (3) depriving the Petitioner of his constitutional right to testify, and (4) failing to present a ballistics expert. After a hearing, the post-conviction court denied relief, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

The Petitioner, Lamar M. Cullom, appeals the White County Criminal Court’s denial of his petition for post-conviction relief, arguing that trial counsel provided ineffective assistance with regard to Exhibit 6, an unedited audio/video recording of the drug transaction between the Petitioner and a confidential informant that was not shown to the jury. The Petitioner specifically contends that (1) trial counsel failed to object to the prosecutor’s comment that the unedited recording did not have “substance”; (2) trial counsel failed to use the unedited recording during his cross-examination of the confidential informant; (3) trial counsel failed to object to the trial court’s comment to the jury that the unedited recording contained just transportation, that no one was there, and that anything else on it was irrelevant; (4) trial counsel failed to object to the prosecutor’s comment to the jury that the trial court was correct in stating that the unedited recording contained just transportation, that no one was there, and that anything else on it was irrelevant; (5) trial counsel failed to object to the trial court’s ruling that the jury could not view the unedited recording; and (6) the cumulative effect of trial counsel’s errors prejudiced him. We affirm the denial of post-conviction relief.

A motor vehicle accident on the roadway abutting a truck stop resulted in the death of the plaintiff’s husband. The driver of the vehicle turning left into the truck stop was using the entrance meant for semi-trailer trucks and had a limited view of oncoming traffic due to a hill that crested a short distance ahead. The plaintiff filed a negligence claim against the truck stop owners and operators, asserting they created a hazardous condition by failing to place visible signage on their property directing passenger vehicles to the appropriate entrance. The defendants moved to dismiss the complaint, contending they owed no duty to the traveling public because the collision occurred on a municipal road, not on their property. The trial court granted the motion to dismiss, and the plaintiff appealed. We reverse the trial court’s judgment, holding that a balancing test is required to determine whether the defendants owed a duty to the plaintiff’s husband and that dismissing the complaint is premature at this stage of the proceedings.

This opinion is being filed contemporaneously with our opinion in Cox v. Lucas, No. E2017-02264-COA-R3-CV. Each case involves a custody dispute between Laura Nicole Lucas (mother) and one of her two ex-husbands. In the present case, Lewis Alvin Minyard (father) filed a petition in the trial court for ex parte emergency relief and modification of the permanent parenting plan. Over two and a half years later, mother filed a motion to dismiss all orders resulting from father’s petition as void for lack of subject matter jurisdiction. Mother argued that father’s petition included allegations of dependency and neglect, which implicated the exclusive original jurisdiction of the juvenile court. After a hearing on the matter, the trial court denied mother’s motion. Mother appeals. We reverse and remand for further proceedings.

This opinion is being filed contemporaneously with our opinion in Minyard v. Lucas, No. E2017-02261-COA-R3-CV.1 Each case involves a post-divorce custody dispute between Laura Nicole Lucas (mother) and one of her two ex-husbands. In the present case, Bradley James Cox (father) filed a petition in the trial court for ex parte emergency relief and modification of the permanent parenting plan. Nearly two years later, mother filed a motion to dismiss all orders resulting from father’s petition as void for lack of subject matter jurisdiction. Mother argued that father’s petition included allegations of dependency and neglect, which implicated the exclusive original jurisdiction of the juvenile court. After a hearing on the matter, the trial court denied mother’s motion. Mother appeals. We reverse and remand for further proceedings.

The Petitioner, Alexander R. Carino, pleaded guilty to two counts of second degree murder, and the trial court sentenced him to forty-three years of incarceration. The Petitioner did not appeal his convictions and did not file a timely post-conviction petition. The Petitioner filed a petition for habeas corpus relief, which the habeas corpus court summarily dismissed. This court affirmed. Alexander R. Carino v. State, M2017-00345- CCA-R3-CD, 2017 WL 3311196, at *1 (Tenn. Crim. App., at Nashville, Aug. 3, 2017), perm. app. denied (Tenn. Nov. 17, 2017). The Petitioner filed an untimely petition for post-conviction relief, which the post-conviction court summarily dismissed. On appeal, the Petitioner contends that the post-conviction court erred and should have waived the statute of limitations because his trial counsel did not give him his case file to prepare the petition and because he had been denied access to the prison legal library, thereby delaying the filing of his petition. After review, we affirm the post-conviction court’s judgment.

Petitioner, O’Dell Taylor Wisdom, appeals from the summary dismissal of his pro se pleading in which he alleges that his convictions for failure to appear and contempt violate the prohibition against double jeopardy. We affirm the judgment of the trial court.

Petitioner, Rico Eugene Mallard, appeals the summary dismissal of his petition for writ of error coram nobis in which he challenged his convictions for first degree felony murder, especially aggravated robbery, and first degree premeditated murder and his effective sentence of life imprisonment plus twenty-two years. We affirm the judgment of the coram nobis court.