APPELLATE COURT OPINIONS

This is a post-divorce child custody and parental relocation case. Father petitioned the trial court to modify the parties’ parenting plan to designate him as the minor child’s primary residential parent and to allow him to relocate the child from Tennessee to Virginia. Mother opposed Father’s petition and filed a counter-petition requesting the court modify the residential parenting schedule to reflect Father’s move to Virginia. The trial court found that a material change in circumstances existed to permit an examination of whether changing the child’s primary residential parent from Mother to Father was in the child’s best interest. After an analysis of the best interest factors set forth in Tennessee Code Annotated section 36-6-106(a), the court concluded that it would be in the child’s best interest to remain in Tennessee with Mother as her primary residential parent. The court also adopted Mother’s proposed residential parenting schedule. The trial court then calculated Father’s retroactive and prospective child support obligations and awarded Mother the attorney’s fees she incurred in defending Father’s petitions and successfully pursuing her own. Father subsequently filed a Rule 59 motion to alter or amend the trial court’s judgment and to reopen the proof in the matter. The trial court denied Father’s request and awarded Mother additional attorney’s fees she incurred in defending the motion to alter or amend. Father has appealed the trial court’s determination that Mother should remain the child’s primary residential parent, the new residential parenting schedule, the court’s application of Tennessee’s parental relocation statute, the calculation of the income of the parties, the calculation of child support, and the award of attorney’s fees. We conclude that the trial court erred in calculating the amount of Father’s monthly gross income. The award of child support is therefore vacated and remanded for reconsideration. We affirm the judgment of the trial court in all other respects. We decline both parties’ requests for attorney’s fees incurred on appeal.

Victor Dunn (“Employee”), a Tennessee resident, was injured in Iowa while working for Tradesmen International, Inc. (“Employer”).  Employer accepted the injury as compensable but disputed Tennessee’s jurisdiction over the claim, contended that any award of permanent disability benefits should be limited to one and one-half times the impairment rating, and disagreed with Employee’s calculation of his average weekly wage.  The trial court held that it had jurisdiction, that the claim was not “capped,” and that Employee’s proposed average weekly wage was correct. It awarded permanent partial disability benefits of 25% to the body as a whole.  Employer has appealed, arguing that the trial court’s ruling on the average weekly wage issue was incorrect. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51.  We affirm the judgment.

Jeffrey Walton (“the Petitioner”) was convicted of vandalism over the value of $10,000 and burglary of a building and received an effective sentence of twenty-seven years. He filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner argues that second and third trial counsel’s performance was deficient because they (1) failed to prepare a trial strategy; (2) failed to investigate the background of Barrow-Agee Laboratories and discover a fatal variance in the indictment; (3) failed to properly cross-examine witnesses; and (4) failed to request jury instructions on the defenses of duress and necessity. The Petitioner asserts that he was prejudiced because absent these deficiencies, he would have likely been convicted of a lesserincluded offense or acquitted of the offenses. After a thorough review of the record and applicable case law, we affirm the judgment of the post-conviction court.

This case involves a dispute over property. The trial court ruled that the defendants’ driveway and air conditioner pads encroached onto the plaintiffs’ property but declined to order their removal. Rather, the trial court awarded the plaintiffs damages and ruled that the encroachments could remain in place. Both parties appealed. We affirm the trial court’s conclusion that plaintiffs’ action with regard to the driveway is not barred by the Tennessee Code Annotated section 28-2-103 statute of limitations. We reverse the trial court’s ruling, however, to note that any action regarding the air conditioners and their placement is barred by the section 28-2-103 statute of limitations. We also reverse the trial court’s ruling allowing the driveway to remain in place.

Plaintiff appeals the dismissal of her case and the award of sanctions against her. The trial court dismissed the action for failure of Plaintiff to comply with the pre-suit notice and certificate of good faith requirements of the Tennessee Health Care Liability Act. Plaintiff also argues that the trial court engaged in judicial misconduct. Discerning no reversible error, we affirm the judgment as modified.

This case involves a divorced party’s request to recover unpaid child support and alimony. The petitioner filed her lawsuit in the Shelby County Circuit Court, which denied her request for relief. Although the petitioner appeals, we conclude that the trial court was without subject matter jurisdiction over the petitioner’s claims. Because the petitioner’s ex-husband is deceased and the claims at issue are against the ex-husband’s estate, the petitioner was required to file her claims against the estate in the Shelby County Probate Court. We therefore vacate the judgment of the trial court and dismiss the case for lack of subject matter jurisdiction.

The Defendant, Heath Bell, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and first degree felony murder. The trial court merged the convictions and sentenced the Defendant to life imprisonment. The Defendant raises the following five issues on appeal: (1) whether the trial court erred by denying his motion to suppress tainted eyewitness identification testimony; (2) whether his due process rights were violated by the State’s withholding of exculpatory evidence of a possible third party perpetrator; (3) whether the trial court erred by not granting his request for a new trial based on the newly discovered exculpatory evidence; (4) whether the evidence was sufficient to establish his identity as one of the perpetrators; and (5) whether the trial court erred by limiting his closing argument. Following our review, we affirm the judgment of the trial court.

The Petitioner, Raymond Burford, was convicted of premeditated first degree murder and received a life sentence. He appeals the post-conviction court’s denial of relief arguing that trial counsel was ineffective by (1) recalling a witness knowing that she would offer evidence of the Petitioner’s prior bad acts that had not been introduced in the State’s case in chief and (2) failing to adequately research diminished capacity as a defense. Upon our review, we affirm the judgment of the post-conviction court.

A Bedford County jury convicted the Petitioner, Christopher Lee Richardson, of attempted theft of property valued at $1,000 or more but less than $10,000, disorderly conduct, possession of a schedule IV controlled substance for sale or delivery, resisting arrest, possession of a Schedule VI controlled substance, and promotion of methamphetamine manufacture. The trial court ordered an effective sentence of twelve years. On appeal, this Court affirmed the convictions and sentence. See State v. Christopher Lee Richardson, No. M2013-01178-CCA-R3-CD, 2014 WL 12651041, at *1 (Tenn. Crim. App., at Nashville, June 12, 2014), no perm. app. filed. The Petitioner filed a post-conviction petition, and following a hearing the post-conviction court denied relief. On appeal, the Petitioner maintains that he received the ineffective assistance of counsel. After review, we affirm the post-conviction court’s judgment.

The Defendants, Jarvis Sherrod and Antonio Dodson, were each convicted by a Shelby County Jury of three counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated rape, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. Sherrod was also convicted of one count of aggravated sexual battery and was sentenced to seventy-three years’ incarceration; Antonio Dodson was sentenced to forty-four years’ incarceration. In Jarvis Sherrod’s appeal, he argues that the trial court erred by: (1) denying his motion to sever his case from that of his co-defendant; (2) denying his right to a speedy trial; (3) improperly admitting a gun into evidence at trial; (4) allowing the victims’ prior consistent statements at trial; and (5) improperly exercising its duty as thirteenth juror. In Antonio Dodson’s appeal, he argues that the trial court erred by: (1) denying his motion to sever his case from that of his co-defendant; (2) finding that the evidence was sufficient to support two of his especially aggravated kidnapping convictions; (3) allowing improper closing argument by the State; (4) allowing the victims’ prior consistent statements at trial; (5) allowing improper expert witness testimony; and (6) denying his motion to dismiss count ten of the indictment for failure to provide sufficient notice of the charge. Upon review, we affirm the judgments of the trial court.

Petitioner, Gwendolyn Hagerman, was convicted of five counts of rape of a child and sentenced to an effective sentence of sixty years. Subsequently, she sought post-conviction relief on the basis of ineffective assistance of counsel. The post-conviction court denied relief and dismissed the petition. Petitioner appealed. After a review, we affirm the denial of post-conviction relief.

The Petitioner, David E. Breezee, appeals the Benton County Circuit Court’s denial of his petition for post-conviction relief from his convictions of rape of a child, rape, and two counts of incest and resulting effective thirty-four-year sentence. On appeal, he contends that he received the ineffective assistance of trial counsel, that the post-conviction court erred by denying his petition for a writ of error coram nobis, and that he is entitled to a second post-conviction evidentiary hearing due to post-conviction counsel’s deficient performance. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

A Shelby County Criminal Court Jury convicted the Appellant of first degree premeditated 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 ruling that evidence of the victim’s gang affiliation was irrelevant to the Appellant’s claim of self-defense, that the trial court erred by admitting hearsay text messages into evidence, and that the trial court erred by giving a flight instruction to the jury. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Darryl Lee Davis, the Petitioner, filed a Petition for Writ of Habeas Corpus claiming that his twenty-five year sentence had expired and that he was being illegally restrained of his liberty. The habeas corpus court found that the Petitioner’s sentence had not expired and summarily dismissed the Petition. We affirm the judgment of the habeas corpus court.

Wayne Sellers (“the Petitioner”) appeals the denial of post-conviction relief from his 2013 Shelby County Criminal Court conviction for aggravated rape, for which he received a sentence of twenty-three years’ incarceration. In this appeal, the Petitioner contends that he was denied the effective assistance of counsel based on trial counsel’s failure to explain the defense strategy to the Petitioner and object to the victim’s in-court identification of the Petitioner. Discerning no error, we affirm the denial of postconviction relief.

This is the second appeal of this case. In the first appeal, this Court vacated the judgment and remanded to the trial court only for a determination of whether mother’s failure to visit the child was willful. On remand, the trial court found that mother’s failure to visit the child was willful. We affirm the trial court’s conclusion that clear and convincing evidence established the ground of willful failure to visit by an incarcerated parent. We also affirm the trial court’s determination that termination is in the child’s best interest. Consequently, we affirm the termination of Mother’s parental rights.

The Appellant, Jaymes Harrison, is appealing the trial court’s denial of his motion to correct an illegal sentence. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Defendant, Terry Trammell, was convicted of two counts of theft after a jury trial. The trial court merged the two counts and sentenced Defendant to a twelve-year sentence. On appeal, Defendant challenges the trial court’s denial of a continuance and the sufficiency of the evidence. After a review, we determine Defendant waived the issue with respect to the continuance for failure to raise the issue in a motion for new trial and failure to present an adequate record on appeal. Additionally, we determine the evidence was sufficient to support the conviction. Accordingly, the judgment of the trial court is affirmed.

This appeal involves child support for two minor children, H.T. and C.B. (“the Children”). Upon a prior dependency and neglect petition, the Montgomery County Juvenile Court (“trial court”) had awarded custody of the Children to their grandmother in an order entered December 29, 2010. The court had also granted the Children’s mother weekly visitation and ordered the mother to pay $410.00 monthly in child support. In April 2011, the State of Tennessee (“the State”), acting on behalf of the grandmother, filed a petition to set child support, which the trial court dismissed upon finding that support previously had been set. In December 2011, the State issued an administrative order, finding that the mother owed an arrearage of $4,510.00 and ordering her to pay an additional $205.00 per month. The mother subsequently filed a petition seeking custody of the Children and naming the grandmother as the respondent. Without notice to the State, the mother and the grandmother announced agreements to the trial court, which the court memorialized in two agreed orders: (1) a March 13, 2015 order returning custody of the Children to the mother and granting reasonable visitation to the grandmother and (2) a May 28, 2015 order waiving all child support arrearages owed to the grandmother, directing the mother to pay a $1,488.00 child support arrearage to the State at a rate of $50.00 per month, and reinstating the mother’s driver’s license. In September 2015, the State filed a petition for criminal contempt against the mother for failure to pay child support. The State subsequently filed a “motion to reconsider or set aside” the May 2015 agreed order, citing Tennessee Rule of Civil Procedure 60.02. Following a hearing, the trial court entered an order denying the State’s motion, directing the mother to pay the $1,488.00 arrearage to the State she previously had agreed to pay, and issuing an attachment for the mother’s failure to appear and failure to pay support. The State has appealed. Having determined that, pursuant to Tennessee Code Annotated § 37-1-159(a), the circuit court has sole jurisdiction to consider this appeal flowing from a dependency and neglect action, we transfer this appeal to the Montgomery County Circuit Court.

This is an appeal from the grant of summary judgment, dismissing Appellant’s defamation lawsuit against Appellee. The trial court held that Appellant’s claim sounded in slander. Because Appellant filed her lawsuit more than six months after the offending statements were made, the trial court granted summary judgment on the sole ground that the applicable statute of limitations for slander, Tenn. Code Ann. § 28-3-103, had run. Discerning no error, we affirm and remand.

The Defendant, Ronald Turner, was convicted of three counts of attempted second degree murder when he fired a single shot through a glass door at his child, the mother of his child, and her roommate. The Defendant was also convicted of three counts of employing a firearm in the commission of a dangerous felony and one count of unlawful possession of a handgun with the intent to go armed in a public place where at least one person is present. The Defendant’s convictions for the three counts of attempted second degree murder and the conviction for possession of a handgun were enhanced after the jury found that the gang enhancement statute applied. The Defendant appeals, challenging the sufficiency of the evidence and the constitutionality of the gang enhancement statute. We conclude that the evidence is insufficient to support two of the convictions for attempted second degree murder, and we reverse these convictions and the weapons offenses predicated on them. The Defendant raised the constitutional argument for the first time in the motion for a new trial, and the State argues that the issue is waived. We conclude that the statute is unconstitutional and that the Defendant is entitled to relief from the gang enhancement applied to his sentences. We affirm the judgments of the trial court in all remaining respects.

Father appeals the termination of his parental rights on grounds of: (1) failure to substantially comply with permanency plans; (2) abandonment by failure to establish a suitable home; (3) persistence of conditions, (4) abandonment by an incarcerated parent for wanton disregard; and (5) abandonment by an incarcerated parent for willful failure to support. We vacate the trial court’s determination regarding the ground of abandonment by an incarcerated parent for willful failure to support, but otherwise affirm the trial court’s determinations regarding the remaining grounds for termination. We likewise affirm the trial court’s determination that termination of Father’s parental rights is in the child’s best interest. Accordingly, we affirm the termination of Father’s parental rights.

The Defendant, Thomas Antonio Ricketts, entered guilty pleas in the Davidson County Criminal Court to two counts of facilitation of aggravated child abuse and one count of facilitation of aggravated child neglect.  The trial court imposed concurrent ten-year sentences for each count, to be served in confinement.  On appeal, the Defendant argues that his sentence was excessive and that the trial court erred in denying an alternative sentence.  Upon review, we affirm the judgments of the trial court.

Following a jury trial, the Defendant, Robert Grisham, was convicted of observation without consent, unlawful photography, and especially aggravated sexual exploitation of a minor. In this appeal of right, the Defendant challenges the following: (1) the trial court’s denial of his motion to suppress the deleted files retrieved from his cell phone using highly-sophisticated equipment; (2) the sufficiency of the evidence supporting his conviction for especially aggravated sexual exploitation of a minor, arguing that there was insufficient proof of “sexual activity” by “lascivious exhibition” on the video; and (3) the trial court’s enhancement of his sentencing term for especially aggravated sexual exploitation of a minor to nine years by utilizing the abuse of private trust enhancement factor. In light of our supreme court’s recent decision in State v. Whited, 506 S.W.3d 416 (Tenn. 2016), we conclude that the proof was insufficient to support the element of sexual activity and are, therefore, required to reverse and vacate the Defendant’s conviction for especially aggravated sexual exploitation of a minor. However, because the proof is sufficient to support the lesser-included offense of attempted especially aggravated sexual exploitation of a minor, which was charged to the jury, we remand this matter to the trial court for entry of an amended judgment reflecting a conviction for attempt and for resentencing on this modified conviction. The Defendant’s convictions for unlawful photography and observation without consent are affirmed. Accordingly, the trial court’s judgments are affirmed in part and reversed in part, and the case is remanded for a new sentencing hearing.