APPELLATE COURT OPINIONS

The defendant, Keith C. Buckalew, was convicted by a Sumner County Criminal Court jury of solicitation of a minor to observe sexual conduct, a Class E felony, and assault, a Class B misdemeanor, and was sentenced to respective terms of four years and six months, to be served consecutively. On appeal, the defendant argues that: (1) the trial court erred in allowing the hearsay testimony of two minors under the excited utterance exception to the hearsay rule; (2) the trial court erred in failing to limit, in the second trial, the victim’s testimony about the defendant’s touching her breast; and (3) the trial court erred in failing to limit testimony of the State’s witnesses regarding the defendant’s consumption of alcohol. We conclude that the defendant has waived review of these claims and, accordingly, affirm the judgments of the trial court.
 

Stephen Brian Wilcox (“the Defendant”) was convicted by a jury of attempted aggravated sexual battery. Following a sentencing hearing, the trial court sentenced the Defendant to six years’ incarceration. In this appeal, the Defendant contends that the evidence is not sufficient to support his conviction and that the trial court erred in sentencing him. The Defendant also argues that the trial court erred in excluding testimony related to alleged sexual accusations made by the victim against others, in permitting the victim to be brought into the courtroom to be identified, and in permitting the State to continue its direct examination of the victim’s mother after it passed the witness. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

A Green County Criminal Court Jury convicted the appellant, Shawn Anthony Jones, of one count of first degree premeditated murder, three counts of first degree felony murder, and one count of attempted first degree premeditated murder. The trial court merged the murder convictions and sentenced the appellant to life. After a sentencing hearing, the trial court sentenced the appellant to twenty-five years for the attempted murder conviction and ordered that he serve the sentence consecutively to the life sentence. On appeal, the appellant contends that the trial court erred by (1) allowing the State to introduce into evidence unduly prejudicial photographs of the victims, (2) failing to suppress his statements to police, (3) refusing to allow him to show that a co-defendant told police she kicked open the door to the victims’ home, and (4) failing to grant his motion for a mistrial when the prosecutor commented on his failure to testify. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

William Ned McCoy and Carolyn McCoy (“Plaintiffs”) sued Richard Lee Bales and Shelia M. Bales (“Defendants”) alleging, in part, that Defendants had encroached upon real property owned by Plaintiffs, and seeking, in part, a determination with regard to a boundary line. The case was tried before a jury, and the Trial Court entered judgment upon the jury’s verdict finding and holding, inter alia, that the property is owned by the parties as set out in the Dennis Fultz survey dated February 29, 1996. Plaintiffs appeal to this Court raising an issue regarding whether the evidence supports the jury’s verdict. We hold that material evidence supports the jury’s verdict, and we affirm.

This direct appeal involves a disciplinary proceeding against a Chattanooga lawyer arising out of his representation of two clients. With one member dissenting, a hearing panel of the Board of Professional Responsibility determined that the lawyer should be suspended from the practice of law for nine months. The lawyer appealed to the Chancery Court for Hamilton County, and the trial court upheld the nine-month suspension, concluding that the evidence supported the finding of the hearing panel’s majority that the lawyer’s misconduct caused potential injury to one of his clients. In this appeal, the lawyer argues that (1) the hearing panel erred by refusing to set aside the default judgment entered against him based on his failure to respond to the petition for discipline; (2) the record contains no evidence of potential injury resulting from his misconduct; and (3) the hearing panel ascribed too much weight to his prior history of discipline when considering aggravating and mitigating circumstances. Based on our review of the record, we, like the trial court, affirm the hearing panel’s decision to suspend the lawyer’s license to practice law for nine months.
 

The final judgment from which the appellant seeks to appeal was entered on January 7, 2013. The only Notice of Appeal “filed” by the appellant on February 7, 2013, was submitted to the trial court clerk via facsimile transmission in violation of Rule 5A.02(4)(e) of the Rules of Civil Procedure. Because the Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Anthony D. Forster (“the Petitioner”) filed a petition for post-conviction relief from his conviction for especially aggravated robbery. In his petition, he alleged that he received ineffective assistance of appellate counsel. The post-conviction court summarily dismissed his petition. On appeal, the Petitioner asserts that the post-conviction court erred in summarily dismissing his petition. Upon our thorough review of the record and applicable law, we reverse the judgment of the post-conviction court and remand this matter to the Davidson County Criminal Court for further proceedings consistent with this opinion.

A Davidson County jury found the Defendant, Randall Coleman, guilty of five counts of aggravated sexual battery and one count of rape of a child. The trial court sentenced the Defendant to ten years for each aggravated sexual battery conviction and to the mandatory twenty-five-year sentence for the rape of a child conviction. The trial court ordered partial consecutive sentencing for a total effective sentence of fifty-five years in the Tennessee Department of Correction. On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when sentencing him because his sentence is excessive. After a thorough review of the record and applicable authorities, we conclude there exists no error in the judgments of the trial court. Accordingly, the judgments of the trial court are affirmed.

In three separate cases tried together, a Knox County jury convicted the Defendant, Mark A. Vestal, of two counts of the sale of more than 0.5 grams of cocaine, one count of the sale of less than 0.5 grams of cocaine, and two counts of the delivery of less than 0.5 grams of cocaine. The trial court merged some of the convictions and entered judgments of conviction for: two counts of the sale of more than 0.5 grams of cocaine and one count of the sale of less than 0.5 grams of cocaine. The trial court sentenced the Defendant to a total effective sentence of sixty years in the Tennessee Department of Correction (“TDOC”). On appeal, the Defendant contends that the trial court erred when it: (1) excluded him from voir dire without advising him that he had a constitutional right to be present for jury selection; and (2) ordered that his sentences run consecutively. After a thorough review of the record and relevant authorities, we conclude that the trial court erred when it failed to inform the Defendant that he had a constitutional right to be present during jury selection. The Defendant’s judgments of conviction are reversed, and the case is remanded for a new trial.

An employee was hospitalized with severe respiratory problems after spending about four days over the course of two weeks power-washing the roof of a commercial building his employer owned. The employee’s treating physician ordered numerous tests, none of which revealed definitively the cause of his condition. Based on the employee’s response to steroid medication and the fact that medical testing revealed no infection or other condition, the treating physician opined that the employee had developed interstitial lung disease from his exposure to a combination of toxic substances while washing the roof. In contrast, the employer’s consulting physician opined that the employee was not exposed to toxic substances in sufficient concentrations while washing the roof to cause interstitial lung disease and that the employee’s condition had been caused by infectious pneumonia, which was not detected by testing during the employee’s hospitalization because the testing was conducted too soon after the infection developed. The employer denied the employee’s workers’ compensation claim, and the employee filed suit in the Chancery Court for Putnam County. The trial court found for the employee and awarded 92.5% permanent partial disability. The employer has appealed, arguing that the proof preponderates against the trial court’s finding of causation and award of 92.5%. The appeal has been referred to this 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 trial court’s judgment.

On January 18, 2011, Ed and Bertha Walker were found beaten to death in their home. In March 2011, Appellant, Jacob Andrew Brown, was indicted by the Tipton County Grand Jury for two counts of premeditated first degree murder, two counts of felony murder, and two counts of especially aggravated burglary. Appellant was sixteen at the time the crimes were committed. The juvenile court held a transfer hearing and determined that Appellant should be tried as an adult in the circuit court. At the conclusion of a jury trial, Appellant was found guilty of each count. The trial court merged the two felony murder convictions into the two premeditated first degree murder convictions and merged one especially aggravated burglary charge into the other. Appellant was sentenced to life without parole for the two murder convictions and eight years to be served at 100% for the especially aggravated burglary conviction. The trial court ordered that all the sentences were to be served consecutively. On appeal, Appellant argues that the juvenile court improperly determined that his case should be transferred to the circuit court and that the evidence was insufficient to support his convictions. After a thorough review of the record, we conclude that Appellant cannot succeed on these issues. However, because the death of the victim is the serious bodily injury upon which his especially aggravated burglary convictions are based, we remand to the trial court for entry of a judgment reflecting a modified conviction of aggravated burglary and for re-sentencing.

The Petitioner, Tracy Lynn Harris, appeals the Circuit Court of Lake County’s denial of his pro se petition for writ of habeas corpus. 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, Edward Warren Wise, was convicted by a Davidson County Criminal Court jury of voluntary manslaughter and sentenced to a Range I sentence of six years in confinement. On appeal, he argues that the trial court erred in allowing the State to introduce the preliminary hearing testimony of a witness who died prior to trial and also challenges the sufficiency of the convicting evidence. After review, we affirm the judgment of the trial court.
 

The Petitioner, Kermit Penley, appeals the Circuit Court of Lauderdale County’s denial of his pro se petition for writ of habeas corpus. 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.

I agree with the majority that the evidence in this case preponderates against the trial court’s division of the net marital estate. I also concur in the majority’s further conclusion that the evidence preponderates against the type and amount of alimony awarded to Ms. Kelly. In my judgment, the evidence preponderates in favor of the majority’s division of the net estate and its award of transitional alimony in the amounts stated in the opinion.

A Davidson County Criminal Court Jury convicted the appellant, David Chardwick Wooten, of two counts of aggravated sexual battery, a Class B felony, and the trial court sentenced him to ten years for each conviction to be served concurrently. On appeal, the appellant contends that (1) the evidence is insufficient to support the convictions; (2) the State’s inadequate election of offenses deprived him of his constitutional right to a unanimous verdict for count 2; and (3) the trial court should have granted his request for a mistrial when a State witness testified that he refused to take a polygraph examination. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.
 

The trial court dismissed Claimant’s claim against Decedent’s estate as void not with standing the failure of the Estate to file a timely exception to the claim. We reverse.

Defendant, Martin Boyce, was indicted in a seven-count indictment alleging one count of second degree murder, two counts of attempted second degree murder; two counts of aggravated assault; one count of employing a firearm during the commission of a dangerous felony, and one count of possession of a handgun by a convicted felon. Following a jury trial, Defendant was convicted of the lesser-included offenses of criminally negligent homicide and reckless endangerment in counts 1 and 2, attempted second degree murder in count 3, aggravated assault in count 5, employing a firearm during the commission of a dangerous felony in count 6, and possession of a handgun by a convicted felon in count 7. Defendant was acquitted of one count of aggravated assault in count 4. Following a sentencing hearing, the trial court sentenced Defendant to serve four years for each conviction in counts 1 and 2, 17 years for his conviction in count 3, eight years for his conviction in count 5, and six and four years respectively for his convictions in counts 6 and 7. Defendant’s sentences in counts 1, 2, 3, and 5 were ordered to run concurrently with each other and consecutively to his sentences in counts 6 and 7, which were ordered to run consecutively with each other and his other sentences, for a total effective sentence of 27 years. On appeal, Defendant asserts that: 1) the evidence at trial was insufficient to support his conviction for attempted second degree murder; 2) the trial court erred by failing to sever count 7; 3) the trial court erred by not requiring the State to elect a dangerous felony underlying the offense in count 6 and by failing to instruct the jury as to the dangerous felony underlying the offense in count 6; 4) Defendant’s dual convictions for employing a firearm during the commission of a dangerous felony and being a convicted felon in possession of a firearm violate double jeopardy, and 5) the trial court should not have ordered Defendant’s sentence in count 7 to run consecutively to his other sentences. The State asserts that Defendant has waived all issues except sufficiency of the evidence and consecutive sentencing because the motion for new trial was untimely filed. We reject the State’s argument concerning the timeliness of the motion for new trial. The judgment of conviction was not stamp-filed by the clerk, and thus there is nothing in the record to show that the motion for new trial was filed late. After reviewing the issues on the merits, we reverse Defendant’s conviction in count 6 and remand for a new trial. We also remand count 3 for entry of a corrected judgment which indicates the disposition of the charge as guilty by jury verdict. The remaining convictions and sentences are affirmed.

The Defendant, Jacob Andrew Reller, was convicted by a Sevier County Circuit Court jury of driving under the influence (DUI), a Class A misdemeanor. See T.C.A. § 55-10-401(2012). He received an eleven-month, twenty-nine-day sentence with all but ten days suspended. On appeal, the Defendant contends that (1) the evidence was insufficient to sustain his conviction, (2) the prosecutor failed to produce exculpatory evidence, and (3) the trial court erred in finding evidence of the Defendant’s alibi and Officer Wilder’s impeachment irrelevant. We affirm the judgment of the trial court.

I respectfully disagree with the majority’s decision affirming the trial court’s imposition of consecutive sentences. With respect to the Defendant’s remaining issues, I concur with the majority’s decision.

This appeal arises from a divorce and child custody determination. After 18 years of marriage, Terri Ann Kelly (“Wife”) sued Willard Reed Kelly (“Husband”) for divorce in the Circuit Court for Hamilton County (“the Trial Court”). The Trial Court, among other things, awarded Wife alimony and custody of the parties’ son, Will. Husband appeals, raising several issues. We reverse the Trial Court in its award of custody of Will to Wife. We modify the Trial Court’s division of the marital estate and its award of alimony to Wife. Finally, we affirm the Trial Court as to its award of attorney’s fees to Wife. We affirm, in part, as modified, and reverse, in part, the judgment of the Trial Court.

The appellant, Kyle Ronald Fencl, pled guilty in the Davidson County Criminal Court to one count of theft of property valued less than $500, one count of robbery, seven counts of aggravated robbery, and one count of aggravated assault. The trial court imposed an effective sentence of thirty years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s imposition of consecutive sentencing.

Following a jury trial, the defendant, Kedrick Carwell, was convicted of carjacking, a Class B felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. The trial court sentenced him as a Range II, multiple offender to fifteen years for the carjacking conviction and as a violent offender to ten years for the firearm conviction, to be served consecutively. On appeal, he argues that the evidence is insufficient to support his convictions. Based upon our review, we affirm the judgments of the trial court.

The petitioner, Brent A. Blye, appeals the denial of his petition for post-conviction relief. In this case, the petitioner was convicted by a jury of possession with intent to sell 26 grams or more of cocaine, a Class C felony, possession of a Schedule III controlled substance, a Class A misdemeanor, and possession of less that .05 ounces of marijuana, a Class A misdemeanor. Following the verdict, the parties reached an agreement on sentencing whereby the petitioner would serve twelve years as a Range II offender on the cocaine conviction and eleven months and twenty-nine days on each of the misdemeanors. As part of the same sentencing agreement, the petitioner entered guilty pleas and was sentenced in three unrelated cases at the same time. On appeal, he contends that the post-conviction court erred in denying him relief because he was denied his right to the effective assistance of counsel at trial. Specifically, he contends that trial counsel was ineffective for: (1) failing to file a timely motion for new trial; and (2) failing to develop a theory of defense at trial arguing for a lesser-included offense when evidence was available to support such a defense. Following review of the record, we remand the case to the post-conviction for a determination of whether a delayed appeal is proper based upon deficient performance in trial counsel’s failing to file a motion for new trial. The denial of post-conviction relief is affirmed in all other aspects.

Consulting group that served as the agent of record for a trust established to provide insurance to employees of a county school system filed a complaint alleging a violation of the Open Meetings Act when a group of trustees met for lunch with one of the consulting group’s employees and later changed the school system’s agent of record when the employee formed a different association with another company. The trial court found that no violation of the Open Meetings Act occurred at the lunch meeting because no decision was made during the lunch. We affirm the trial court’s judgment.