APPELLATE COURT OPINIONS

A Knox County jury convicted the Defendant, Danny Branam, of felony murder committed during the perpetration of aggravated child abuse and aggravated child abuse. The trial court sentenced the Defendant to life in prison for the felony murder conviction with a consecutive twenty-year sentence for the aggravated child abuse conviction. On appeal, the Defendant contends that the trial court erred when it denied his motion for a mistrial and that the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

The dispositive issue in this appeal is whether an inaccuracy in the prosecution's election of offenses amounted to plain error that entitles the defendant to relief. Although the Court of Criminal Appeals erred by failing to subject the election issue to plain error analysis, we hold, after thoroughly reviewing the record pursuant to the plain error doctrine, that the election error does not entitle the defendant to relief. Despite the inaccuracy, the election was sufficiently specific to eliminate any substantial risk that the jury would return a non-unanimous verdict. Additionally, the defendant has failed to provide a complete record of the proceedings in the trial court. Accordingly, under these circumstances, we affirm, on the separate grounds stated, the Court of Criminal Appeals' judgment upholding the defendant's conviction of rape of a child.

Anthony Travis Richards (Husband), who was incarcerated in the custody of the Tennessee Department of Correction, filed this divorce action against Veronica Denise Richards (Wife). Husband also filed a “motion for leave of court to appear by means of video communications technology or, in the alternative, by telephone in lieu of personal attandence” in accordance with Tenn. Code Ann. § 41-21-809 (2014). The trial court did not address Husband’s motion. Rather, the court entered an order dismissing Husband’s complaint predicated on his failure to appear and prosecute the action. We hold that the trial court committed prejudicial error by dismissing Husband’s action without first considering his pending motion. Accordingly, we vacate the trial court’s judgment and remand for further proceedings.

The defendant, Plaise Edward Spangler, appeals the revocation of his probation, raising essentially the following issues: whether the trial court abused its discretion by finding that the defendant violated the terms of his probation by failing to submit to a drug screen and failing to pay court costs and fees when neither failure was willful; whether the trial court erred by not considering all lesser alternative means to incarceration, including intensive drug rehabilitation by referral to a drug court; and whether the trial judge committed plain error by not sua sponte recusing himself because he had been the prosecutor in a number of the defendant's previous criminal cases. Following our review, we affirm the judgment of the trial court.

Mother, the primary residential parent, filed a petition seeking permission to relocate to Texas with the parties’ minor son. Father opposed Mother’s petition and filed a separate petition to be designated the primary residential parent. One week before trial, Mother notified the court that her petition to relocate was moot because she no longer needed to relocate; the trial proceeded on Father’s petition. Following trial, the court did not name Father the primary residential parent but increased Father’s residential parenting time. The trial court also modified child support by imputing additional income to Father upon a finding his current income was “significantly less than . . . his ability to earn,” and decreasing Mother’s because she recently lost her job and was unemployed as of the trial. Father appealed, contending that the trial court erred by failing to designate him as the primary residential parent. He also contends the court erred in modifying child support based on imputed income above his salary, and a finding that Mother’s ability to earn had diminished. Mother did not allege that Father was voluntarily or willfully underemployed; therefore, Father was not put on notice the issue would be tried. Furthermore, because the issue was not tried by consent, the court erred in imputing income to Father. Accordingly, we reverse the imputation of additional income to Father and remand the issue of child support. We affirm the trial court in all other respects.

The Defendant-Apellant, James W. Grooms, Jr., was convicted by a Hawkins County jury of two counts of aggravated assault, for which he received an effective sentence of four years and six months' confinement. On appeal, the Defendant asserts that (1) the trial court committed plain error by instructing the jury that aggravated assault was a lesser-included offense of attempted first degree murder, and (2) the evidence is insufficient to sustain his conviction for aggravated assault. Upon our review, we affirm the judgments of the trial court.

The Madison County solid waste planning region board rejected an application, submitted on behalf of A-1 Waste, LLC, to construct a solid waste landfill.  In light of the rejection, the Commissioner of the Tennessee Department of Environment and Conservation declined to issue the landfill permit.  A-1 Waste appealed the region board’s rejection to the Chancery Court for Davidson County.  A-1 Waste also requested review of the Commissioner’s action by the Tennessee Solid Waste Disposal Control Board.  The chancery court stayed A-1 Waste’s appeal pending the outcome of the control board’s review.  The control board reversed the region board and ordered that the permit be granted.  The region board subsequently petitioned the chancery court for review of the control board’s decision.  The chancery court consolidated A-1 Waste’s appeal with the appeal filed by the region board and a third action filed by a group of concerned citizens.  Following a hearing, the chancery court reversed the control board’s decision and the issuance of the permit.  On appeal,   A-1 Waste claims the trial court applied an incorrect standard of review to the region board’s decision and that the decision was properly reversed by the control board.  A-1 Waste also claims that the group of concerned citizens lacked standing to seek judicial review of the control board’s decision.  We conclude that the control board lacked authority to review the region board’s decision and that the region board properly rejected the permit application.  We also conclude the concerned citizens had standing to appeal the control board’s decision.  Therefore, we affirm.

Petitioner, Raymond Andrew Herbst, filed a petition for post-conviction relief, alleging that his guilty pleas to one count of rape and three counts of attempted rape were constitutionally infirm because he was not informed that he would be subject to lifetime community supervision.  Because due process does not require tolling of the statute of limitations, the decision of the post-conviction court is affirmed.

Mother, a German citizen, married Father while he was stationed in Germany with the United States Army.  The two moved to the United States, had one child, and were divorced.  Approximately five years after being divorced, Mother sent Father a letter notifying him of her intention to relocate to Germany with the child.  Father responded with a letter expressing his opposition to the child’s relocation and subsequently filed a petition opposing relocation; the petition was filed outside the 30-day time period set forth in Tenn. Code Ann. § 36-6-108.  Mother moved to dismiss Father’s petition for failure to file it within 30 days of receipt of the notice of proposed relocation; the motion was denied, and after a hearing on Father’s petition, the court found that Mother’s motive for moving was vindictive and that she had no reasonable purpose in relocating.  Finding that the petition opposing Mother’s relocation should have been dismissed, we reverse the judgment of the trial court and remand the case for further proceedings.

This appeal arises from the dismissal of a complaint filed by a pro se litigant.  The complaint sought injunctive and declaratory relief against several banks and a corporation, alleging that the banks and the corporation colluded to foreclose on her property. The trial court, after giving the complainant several opportunities to amend, dismissed her complaint for failure to state a claim upon which relief can be granted.  We affirm the dismissal of the complaint.

Patricia Bazemore brought this action against her former employer, Performance Food Group, Inc. (PFG) and Barry Pearson, a former employee of PFG. Ms. Bazemore claimed that, while she and Mr. Pearson were working for PFG, she was subjected to a pattern of unwanted sexual harassment by him – conduct that she alleges created a hostile work environment in violation of the Tennessee Human Rights Act (THRA). As a result of the unwanted sexual harassment, Ms. Bazemore also alleged constructive discharge, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision and retention.1 PFG subsequently filed a motion for summary judgment, contending that no genuine issue of material fact exists in support of Ms. Bazemore’s claims against PFG as an entity. The trial court ultimately granted PFG’s motion for summary judgment after finding (1) no evidence of a hostile work environment; (2) facts indicating that PFG took reasonable steps to prevent sexual harassment from occurring; (3) proof that PFG’s response to Ms. Bazemore’s complaint was objectively reasonable; (4) insufficient evidence to support the claims of either intentional or negligent infliction of emotional distress; and (5) no proof of negligent retention and supervision by PFG. We affirm.

In this action seeking to enforce a judgment lien against the debtor‘s real property, the debtor claimed that he was not properly served with process in the underlying lawsuit wherein the judgment was entered. The trial court granted summary judgment to the creditor, and the debtor appealed. We affirm the trial court‘s grant of summary judgment based on the validity of the underlying judgment, determining that such judgment was not void on its face and thus not subject to collateral attack. We reverse the issue of whether the creditor should have been granted an award of attorney‘s fees at trial pursuant to the parties‘ fee agreement and remand for specific findings by the trial court. We decline to award attorney‘s fees to the creditor incurred in defending this appeal.

The Petitioner, Mark Takashi, appeals from the denial of post-conviction relief by the Criminal Court for Knox County. He was convicted of aggravated child abuse and sentenced to twenty-five years' imprisonment, to be served at 100 percent. On appeal, the Petitioner argues that he received ineffective assistance of counsel during plea negotiations. Upon review, we affirm the judgment of the post-conviction court.

The Department of Children’s Services (“DCS”) and the Guardian ad Litem both filed petitions in the Juvenile Court for Johnson County (“the Juvenile Court”) seeking to terminate the parental rights of D.A.F. (“Father”) and J.D.F. (“Mother”) to four of their minor children: C.A.F., born 08/06; J.A.F., born 01/08; C.R.F., born 01/09; and, S.R.F., born 09/11 (“the Children,” collectively). The ground alleged was severe child abuse, of a sexual nature. After a trial, the Juvenile Court found that clear and convincing evidence established the ground of severe child abuse and that termination of Mother’s and Father’s parental rights was in the Children’s best interest. Mother and Father appeal the termination of their parental rights, arguing, in part, that the ground of severe abuse must be overturned because no medical exam was conducted on the Children. We affirm the judgment of the Juvenile Court.

In this procedurally complex case, in 2006, a trial court found the Defendant, Kenneth Ryan Mallady, not guilty by reason of insanity for the offenses of first degree premeditated murder, attempted first degree premeditated murder, and aggravated assault.  The judge ordered that the Defendant be transported to Middle Tennessee Mental Health Institute (“MTMHI”).  The Defendant was subsequently discharged from MTMHI  with the requirement that he participate in mandatory outpatient treatment.  In 2012, the trial court found that the Defendant had not complied with his mandatory treatment plan, appointed him counsel, and ordered him temporarily recommitted to MTMHI.  In 2014, the trial court held a hearing and ordered that he be permanently recommitted to MTMHI.  The Defendant appeals his permanent recommitment, contending that the trial court applied the incorrect legal standard when making its findings.  After a thorough review of the record and relevant authorities, we conclude that the record supports the trial court’s judgment.

Appellant, Louis Tyrone Robinson, appeals the Circuit Court of Gibson County’s denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. The State has filed a motion requesting that this Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

The defendant, Darrel Dean Hochhalter, was convicted by a Davidson County Criminal Court jury of six counts of sexual battery by an authority figure and one count of rape.  He was sentenced to five years for each count of sexual battery by an authority figure and twelve years for the rape conviction.  The court ordered that two of the sentences for sexual battery by an authority figure and the sentence for rape be served consecutively, for an effective term of twenty-two years.  On appeal, he argues that: (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred in admitting the forensic interview of the victim at trial; and (3) the trial court abused its discretion in sentencing him to twenty-two years in confinement.  After review, we affirm the judgments of the trial court.  However, we remand for entry of a corrected judgment in Count 7 to reflect the rape conviction as a Class B felony.

In 2009, William Wayne Cutshaw and Tincy Faye Cutshaw sold a piece of commercial real property (the property) to Kenton D. Hensley and Pamela F. Hensley. The property was improved with a retail business whose trade name was Glendale Market & Deli. The total purchase price of the property, including its contents, was $215,000. The Hensleys executed two notes, one of which was for $175,000. It was secured by a deed of trust on the property. After the Hensleys defaulted in 2011, the Cutshaws bid in the property at a foreclosure sale for $20,000. The Cutshaws then brought this action seeking a deficiency judgment for the balance owed by the Hensleys. The trial court, applying the governing statute, Tenn. Code Ann. § 35-5-118 (Supp. 2014), found that the property had sold at the foreclosure sale for an amount materially less than its fair market value, which latter amount the court found to be $215,000 as of the time of the foreclosure sale. The trial court relied upon the formula prescribed by Tenn. Code Ann. § 35-5-118(c), which code section provides that ―the deficiency shall be [(1)] the total amount of the indebtedness prior to the sale plus the costs of the foreclosure and sale, less [(2)] the fair market value of the property at the time of the sale.‖ The trial court found concept number one to be $173,620.30 and the second concept to be $215,000. Since the difference is a negative figure, the trial court declined to award the Cutshaws a deficiency judgment in any amount. The Cutshaws appeal. We hold that the evidence preponderates in favor of the conclusion that the fair market value of the property at the time of the foreclosure sale was $89,000. We agree with the trial court‘s determination that the foreclosure sale price – $20,000 – was materially less than fair market value.

The Defendant, Doyale Montez Blacksmith, was convicted by a Davidson County Criminal Court jury of aggravated rape, a Class A felony, aggravated kidnapping, a Class A felony, and aggravated stalking, a Class E felony.  See T.C.A. §§ 39-13-502 (2014), 39-13-304 (2014), 39-17-315 (2010) (amended 2012).  The trial court sentenced the Defendant as a Range II, multiple offender to concurrent terms of thirty years for aggravated rape and fifteen years for aggravated kidnapping each at 100% service.  The trial court sentenced the Defendant as a Range III, persistent offender to five years for aggravated stalking and ordered the sentence be served consecutively to the aggravated rape and aggravated kidnapping sentences, for an effective thirty-five-year sentence.  On appeal, the Defendant contends that the evidence is insufficient to support his aggravated rape conviction.  We affirm the Defendant’s aggravated rape conviction.

Appellant, Lederrius Thomas, was convicted of first degree murder and attempted first degree murder. The trial court sentenced appellant to life for his first degree murder conviction and to fifteen years for his attempted first degree murder conviction, to be served concurrently. Appellant now challenges his convictions, arguing that the evidence at trial was insufficient to prove premeditation and that the trial court erred in issuing a supplemental jury instruction regarding the element of premeditation. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court.

This negligence action arose when a minor child injured his finger while participating in a woodworking shop activity at a facility operated by the Boys and Girls Club of Greater Kingsport. The child's father and mother originally filed a joint action as next friends of the child, naming as defendants the Boys and Girls Club of Greater Kingsport and the United Way of Greater Kingsport (collectively, “Defendants”). The parents eventually nonsuited the original action. The child's father subsequently filed this action as next friend of the child, seeking damages for permanent impairment, pain and suffering, medical expenses, and loss of earning capacity. Defendants filed concomitant motions for summary judgment, each asserting that the father lacked standing to bring this action pursuant to Tennessee Code Annotated § 20-1-105(b). Following a hearing, the trial court granted summary judgment in favor of Defendants. The father has appealed. Having determined that Tennessee Code Annotated § 20-1-105(b) (2009) operates only to bar an action brought by the father on his own behalf to recover medical expenses and loss of the child's service, we affirm the grant of summary judgment to Defendants only as to the father's claim for these damages. We reverse the grant of summary judgment as to the claims brought on behalf of the child and remand to the trial court for further proceedings consistent with this opinion.

The defendant, Zantuan A. Horton, appeals the revocation of his probationary sentence, claiming that the trial court erred by ordering that he serve the balance of his sentence in confinement.  Discerning no error, we affirm.

Petitioner, Michael A. Dodson, entered open pleas of guilty in the Davidson County Criminal Court to one count of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during the commission of a felony.  Following a sentencing hearing, the trial court imposed a mixture of concurrent and consecutive sentences which resulted in an effective sentence of 86 years at 100% service.  The judgments were affirmed on appeal.  State v. Michael Antonio Dodson, No. M2010-01047-CCA-R3-CD, 2011 WL 5831759 (Tenn. Crim. App. Nov. 21, 2011), perm. app. denied (Tenn. April 20, 2012).  He filed a timely petition for post-conviction relief.  Following an evidentiary hearing, the post-conviction court denied relief and dismissed the petition.  Petitioner has timely appealed, and following a review of the record and the briefs, we affirm the judgment of the post-conviction court.