APPELLATE COURT OPINIONS

On February 23, 2012, M. Shane Mills (“Defendant”) filed a notice of appeal of an order entered by the Trial Court on January 24, 2012. On June 12, 2012, this Court entered an order directing Defendant to show cause why this appeal should not be dismissed as premature. Defendant did not respond to the show cause order. We dismiss this appeal for lack of a final judgment.

The Defendant, James W. Rembert, entered an open plea to offenses alleged in two separate indictments: a four-count indictment for burglary, theft, vandalism, and possession of a firearm by a convicted felon and an additional indictment for aggravated perjury.On appeal, the Defendant contends that the trial court’s imposition of consecutive sentencing was error because the trial court “erroneously presumed” that the Defendant was on bond for offenses in the four-count indictment when the offense of aggravated perjury was committed. Because no error of law requiring a reversal of the judgment is apparent on the record, and the evidence in the record does not preponderate against the findings of the trial court, the judgments of the trial court are affirmed pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

David Wayne Phillips (“the Defendant”) pleaded guilty to twenty-six counts of sexual exploitation of a minor after a computer that he gave someone was discovered to contain child pornography. Nineteen of the counts were for possessing in excess of one hundred images of a minor, all Class B felonies, and the remaining seven counts were for possessing images of a minor, all Class D felonies. The guilty plea agreement did not include an agreement with the State as to sentencing. After a sentencing hearing, the trial court ordered the Defendant to serve an effective thirty-five year sentence and ordered the sentence to run consecutively to the Defendant’s prior twenty-five year sentence. The Defendant appeals, arguing that the trial court erred by: (1) failing to merge the Defendant’s twenty-six convictions into a single Class B felony; and (2) imposing an excessive sentence. After a careful review of the record and applicable law, we affirm the judgments of the trial court.

A Davidson County Criminal Court jury convicted the defendant, Brandon Ackerman, of four counts of soliciting sexual exploitation of a minor,see T.C.A. § 39-13-529(b)(1) (2006); two counts of child abuse, see id. § 39-15-401; and one count of rape of a child, see id. § 39-13-522, and the trial court imposed a total effective sentence of 27 and one half years’ incarceration, 20 years of which was to be served at 100 percent by operation of law, see id. § 39-13-523(b). In this appeal, the defendant asserts that the trial court erred by excluding the testimony of his expert witness, by admitting into evidence a video recording of the victim’s forensic interview, by permitting three State’s witnesses to testify regarding the hearsay statements of the victim, and by denying his motion to suppress his pretrial statements to his ex-wife and to police. Because the trial court erroneously admitted into evidence the video recording of the forensic interview and the victim’s hearsay statements to three witnesses and because those errors cannot be classified as harmless, the judgments of the trial court are reversed, and the case is remanded for a new trial.

Lawrence Brown (“the Defendant”) was convicted of two counts of aggravated robbery, a Class B felony. The trial court sentenced the Defendant as a Range I standard offender to twelve years’ incarceration. In doing so, the trial court enhanced the Defendant’s sentence based upon the following factors: (1) the Defendant has a previous history of criminal convictions or criminal behavior; (2) the offense involved more than one victim; and (3) the Defendant had no hesitation about committing a crime when the risk to human life was high. The Defendant argues on appeal that the trial court erred when it enhanced his sentence based upon his prior convictions, which were misdemeanor traffic offenses. Because we are not permitted to assess the weight given by the trial court to enhancement factors, we conclude that the Defendant is not entitled to relief on this issue. However, because we also determine that the trial court erred in its application of the other two enhancement factors, under the particular facts of this case, we conclude that it is necessary to vacate the judgments of the trial court and remand for resentencing.

The Defendant, Jerome Sidney Barrett, was found guilty by a Davidson County Criminal Court jury of second degree murder, a Class A felony, for a 1975 homicide. See T.C.A. § 39-2403 (1975) (amended 1979, 1985) (renumbered at § 39-2-211) (repealed 1989). He was sentenced to forty-four years, to be served consecutively to a life sentence for a previous conviction. On appeal, he contends that: (1) the evidence is insufficient to support the conviction; (2) the trial court erred in denying his motion to suppress; (3) the trial court erred in denying his motion to dismiss the prosecution due to excessive pre-indictment delay; (4) the trial court erred in admitting evidence that the Defendant stated he “had killed before”; (5) the trial court erred in allowing the State to ask a defense witness whether he was arrested, suspended, and had resigned from the police force in 1978; (6) the trial court erred in allowing the forensic pathologist who performed the victim’s autopsy to testify as an expert in DNA analysis; (7) the trial court erred in permitting impeachment of a defense witness with evidence of a misdemeanor conviction; (8) the trial court erred in imposing a forty-four year sentence; and (9) the trial court erred in ordering the sentence to be served consecutively to the Defendant’s life sentence. We affirm the judgment of the trial court.

In this case, we are asked to address the question of whether the Municipal Gas System Tax Equivalent Law of 1987, Tennessee Code Annotated Section 7-39-401 through 406, or the Revenue Bond Law, Tennessee Code Annotated Section 7-34-101, et seq., negate the provisions of ordinances passed by Appellees, the Town of Middleton, Tennessee and the Town of Whiteville, Tennessee, which granted Appellant, the City of Bolivar and its municipal utility, the right to franchise in the Appellee towns. We conclude that: (1) Appellants may be liable for both franchise fees under the ordinances, and for payments in lieu of taxes under the Municipal Gas System Tax Equivalent Law because franchise fees are not in the nature of taxes on the valuation of property and are “operating expenses” for the privilege of doing business; (2) although the ordinances initially granted Bolivar’s utility exemption from payments in lieu of taxes to Appellees, by resolution, Bolivar waived its exemption and is now obligated to make payments in lieu of taxes to Appellees under the Municipal Gas System Tax Equivalent Law; (3) to the extent that the Whiteville ordinance conflicts with Bolivar’s statutory right to charge consumers for the actual costs of its services (which would include the franchise fee expenses), it is void; (4) the trial court’s award of pendente lite payments to Appellees was not reversible error in light of our holding that Appellees were (and are) entitled to the franchise fees. Reversed in part, affirmed in part, and remanded.

A prisoner filed a pro se petition for writ of certiorari, which the trial court dismissed sua sponte for failure to prosecute due to the prisoner’s failure to file the necessary summonses. The prisoner appeals. We affirm.
 

This appeal involves the foreclosure of real property owned by the Appellants. The Appellants filed a request for a temporary and permanent injunction, alleging that the Appellee bank that held the mortgage on the property had violated the Appellants’ rights. After the Appellants testified at the temporary injunction hearing, the Bank moved for involuntary dismissal and the trial court dismissed the case. Both parties filed post-trial motions regarding possession of the subject property. The appellate record contains no record that either of these motions was adjudicated by the trial court. Accordingly, the judgment of the trial court is not final, and this Court lacks subject matter jurisdiction over this appeal. Dismissed and remanded.

This is a termination of parental rights case. Father/Appellant appeals the trial court's termination of his parental rights to the minor child at issue. By clear and convincing evidence, the trial court found two grounds for termination of Father’s parental rights: (1) abandonment by an incarcerated parent, and (2) prison sentence of more than ten years, imposed when the child was under the age of eight. The trial court also found, by clear and convincing evidence, that termination of Father’s parental rights was in the child’s best interest. Discerning no error, we affirm.

This appeal concerns the requirements for a petition for certiorari. This case is on remand from the Tennessee Supreme Court for reconsideration in light of Board of Professional Responsibility v. Cawood, 330 S.W.3d 608 (Tenn. 2010). After reviewing the petition for certiorari in light of the requirements set forth in Cawood, we find that the trial court was without subject matter jurisdiction to hear this case. Therefore, we vacate the trial court’s decision and dismiss the case.

The Defendant, Shirea Barber, was convicted by a Shelby County Criminal Court jury of driving under the influence, a Class A misdemeanor. See T.C.A. § 55-10-401 (2010). The trial court sentenced the Defendant to eleven months and twenty-nine days, with ten days’ confinement and the remainder on probation. On appeal, the Defendant contends that the evidence is insufficient to support her conviction. We affirm the judgment of the trial court.

Appellant, Marty Joe Kelley, appeals after a lengthy jury trial during which a Rutherford County Jury convicted him of six counts of rape of a child, three counts of aggravated sexual battery, nine counts of rape without consent, twenty-five counts of especially aggravated sexual exploitation of a minor, and one count of sexual exploitation of a minor. Appellant was sentenced to an effective thirty-nine year sentence, to be served at 100%. On appeal, Appellant argues: (1) the trial court improperly allowed the State to refer to the victim as “the victim” throughout the trial; (2) the State committed prosecutorial misconduct by referring to the victim as “the victim” throughout the trial; (3) the trial court improperly restricted defense counsel’s opening statement; (4) the trial court improperly allowed a State’s witness to remain unsequestered during trial; (5) the trial court erred by denying a mistrial; (6) the trial court improperly allowed the State’s witness to display and explain a speculum during testimony about the physical examination of the victim; (7) the trial court erred by “repeatedly” allowing the State to introduce hearsay; (8) the trial court improperly charged the jury regarding the offenses of rape of a child and aggravated sexual battery; (9) the evidence was insufficient to support the convictions;(10)the trial court improperly enhanced Appellant’s sentences; and (11) the trial court erred by imposing consecutive sentences. After a thorough and complete review of the record and applicable authorities, we conclude:
(1) Appellant waived any issue with regard to references to “the victim” during trial by failure to object; (2) the trial court did not abuse its discretion by prohibiting Appellant from reading a letter written by the victim to Appellant during opening statements where there was some confusion as to whether the State received the letter during discovery; (3) Appellant failed to show that the alleged prosecutorial misconduct alleged affected the verdict to the prejudice of Appellant; (4) Appellant waived any issue with respect to Detective Duke’s remaining in the courtroom for failure to object, and, any error is harmless; (5) Appellant waived any review of whether the trial court should have granted a mistrial because he failed to seek a mistrial; (6) Appellant waived any complaint with respect to Hollye Gallion’s testimony at trial for failure to object to the use of the speculum as demonstrative evidence, and, in the alternative, the trial court did not abuse its discretion; (7) Appellant waived most of the hearsay issues for failure to object at trial; (8) the trial court did not err in admitting the testimony of Mr. Perry that the victim never told him about the abuse; (9) Appellant’s sentences for rape of a child were improperly enhanced to twenty-three years because the trial court applied enhancement factors that were neither found by the jury nor admitted by Appellant; (10) the trial court properly ordered consecutive sentencing where Appellant was convicted of two of more offenses involving sexual abuse of a minor; (11) Appellant is not entitled to plain error review of the jury instructions; and (12) the State improperly elected facts for Count Five. Consequently, Appellant’s conviction in Count Five for rape of a child is reversed and remanded for a new trial. Appellant’s remaining sentences for rape of a child in Counts One, Two, Three, Four, and Six, are hereby modified to twenty years. Additionally, the trial court should enter a corrected judgment in Count Fifty and Fifty-eight to reflect Appellant’s conviction as soliciting sexual exploitation of a minor. Accordingly, the judgments of the trial court are affirmed in part, reversed in part, modified in part, and remanded.
 

A Wayne County jury convicted Appellant, Wesley Trent Reaves, of theft of property worth more than $1,000 but less than $10,000. The trial court sentenced Appellant to eight years as a Range II, multiple offender. On appeal, Appellant argues that the evidence was insufficient to support his conviction because the State’s witnesses were mistaken or lied during their testimonyat trial and that the trial court erred in imposing an eight-year sentence because it failed to apply a mitigating factor. We conclude that the evidence was sufficient to support the conviction and that the trier of fact is the sole arbiter of the credibility of the witnesses. We also determine that although the trial court erred in failing to apply the mitigating factor in question, Appellant’s criminal history more than supports the imposition of an eight-year sentence. Therefore, we affirm the judgment of the trial court.

Appellant, Monroe James Dodson, Jr. and his co-defendants were indicted by the Davidson County Grand Jury for three counts of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of possession of a weapon during the commission of a felony. Appellant pled guilty 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 weapon during a felony with prior convictions. The trial court held a separate sentencing hearing and sentenced Appellant to an effective sentence of eighty-two years. Appellant appeals both the length of his sentences and the imposition of consecutive sentences. After a review of the record on appeal, we have determined that the enhancement factors used by the trial court were supported by the record and that, therefore, the length of the sentences is affirmed. We also conclude that the record on appeal supports the trial court’s conclusion that Appellant is a dangerous offender and that consecutive sentences are warranted in his case. For these reasons, we affirm the judgments of the trial court.

The Petitioner, Mario Bateman, appeals from the Shelby County Criminal Court’s denial of post-conviction relief from his conviction for first degree murder and resulting life sentence. On appeal, the Petitioner contends that he did not receive the effective assistance of counsel. We affirm the judgment of the trial court.

Petitioner, Robert D.Conner, appeals the post-conviction court’s dismissalof his petition for post-conviction relief following an evidentiary hearing. Petitioner attacks his convictions for second degree murder and aggravated assault following a jury trial in which he was charged with first degree murder and aggravated assault. The sole ground for relief argued on appeal is that Petitioner was denied effective assistance of counsel because trial counsel failed to file a written motion pre-trial for the severance of offenses, since the charges involved two different victims and occurred on different days. After a thorough review of the parties’ briefs and the record, we affirm the judgment of the post-conviction court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Appellant,JeffreyOsborne,was convicted by a Williamson County jury of burglary and theft of property valued up to $500. Appellant’s sole argument on appeal is that the evidence presented at trial was insufficient to support his conviction of burglary because it failed to establish that Appellant lacked effective consent to enter the building that was the basis of the burglary charge. After a thorough review of the record on appeal, we find that a rational trier of fact could conclude that Appellant lacked effective consent. Therefore, we affirm the judgments of the trial court.

The Defendant, Janice Gates, pled guilty to two counts of vehicular homicide, a Class C felony. The trial court sentenced the Defendant as a Range I, standard offender, to a concurrent sentence of six years for each conviction and ordered her to serve eighteen months in confinement before being released on probation for the remainder of the sentence. On appeal, the Defendant argues that the trial court erred by denying a sentence of full probation. Following our review, we affirm the judgments of the trial court.

Appellant, Charles Middlebrook, was indicted in two separate cases for one count of theft of property over $1,000, one count of theft of property over $500, and three counts of assault. After negotiation with the State, Appellant pled guilty to one count of theft of property over $1,000 and one count of simple assault. The remaining counts were dismissed. Appellant was sentenced to eight years as a Range III, persistent offender for the conviction for theft of property and eleven months and twenty-nine days for the conviction for assault. After a sentencing hearing, the trial court denied alternative sentencing. Appellant appeals, arguing that the trial court improperly denied an alternative sentence. Because the record supports the trial court’s finding that Appellant had a lengthy prior record and repeated unwillingness to comply with a sentence involving release in the community, we affirm the trial court’s denial of an alternative sentence.

This appeal concerns the termination of a father’s parental rights with respect to his son. The father was incarcerated for sexually abusing his stepdaughters, the son’s half sisters, while all resided in the same home. The trial court also found that the father had physically abused the son. The trial court found that all of this conduct constituted severe abuse pursuant to Tennessee Code Annotated §§ 36-1-113(g)(4) and 37-1-102(b)(23)(C). It found that termination of the father’s parental rights was in the son’s best interest. The trial court entered an order terminating the father’s parental rights; the order was entered over thirty days after the termination hearing. The father appeals the tardiness of the termination order and the best interest finding. We affirm.

The Defendant, Leonard Miller, appeals the Madison County Circuit Court’s order revoking his probation for aggravated burglary and theft of property valued at $1000 or more but less than $10,000 and ordering the remainder of his ten-year sentence into execution. We affirm the judgment of the trial court.

After a trial by jury, the defendant was found guilty of rape, a Class B felony, and incest, a Class C felony. He was sentenced to a total effective sentence of ten years. On appeal, the defendant raises numerous challenges to his convictions and sentences. The defendant claims that the evidence is insufficient to support his convictions. However, his argument is based on alleged inconsistencies in the evidence, and conflicts in the evidence provide no basis for reversing a defendant’s convictions. The defendant claims that the trial court erred by admitting the testimony of a police officer concerning statements that the defendant made to his wife in the officer’s presence because these statements were protected by the martial privilege. However, we conclude that the statements were not privileged because the defendant had no reasonable expectation that they would remain confidential. The defendant claims that these same statements should also have been excluded because the officer did not give the defendant his Miranda warnings. However, this claim must fail because the defendant was neither in custody nor being interrogated by the police at the time the statements were made. The defendant claims that the trial court erred by admitting an exhibit containing a nurse’s handwritten notes repeating certain statements made by the victim concerning the cause of her injuries,because these statements were inadmissible under the hearsay rule. However, the trial court properly admitted the statements under the excited utterance exception to that rule. The defendant claims that the trial court erred by giving a pattern rape instruction that included references to “fellatio” and “cunnilingus” because there was no evidence presented at trial establishing that the defendant had committed either act. However, we conclude that the instruction at issue fully and accurately stated the law. The defendant argues that the trial court improperly admitted certain exhibits because no chain of custody had been established, but this argument has been waived. The defendant challenges his ten-year effective sentence as excessive, but after thorough review we can discern no error in the defendant’s sentencing. Finally, the defendant claims that the 2005 Sentencing Act is unconstitutional under Blakely v. Washington, 542 U.S. 296, 302 (2005), but we conclude that binding precedent firmly establishes that the 2005 Sentencing Act complies with Blakely. Consequently, we affirm the judgments of the trial court.
 

Appellant, Joshua A. Randolph, was indicted by the Sumner County Grand Jury in March of 2010 for aggravated assault and domestic assault after an altercation took place at the home occupied by his estranged wife and children. Appellant was convicted by a jury of the lesser included offense of assault. He was acquitted of domestic assault. The trial court sentenced Appellant to eleven months and twenty-nine days of probation. After the denial of a motion for new trial, Appellant filed a notice of appeal. On appeal he insists that the trial court erred by failing to instruct the jury on self-defense. After a review of the record, we conclude, as the State concedes, that the trial court did err in failing to instruct the jury on self-defense where the evidence fairly raised a contested issue of fact, i.e., whether Appellant was in the home with consent of the lawful resident when the altercation took place, and therefore entitled to raise self-defense because he claimed he was attacked. As a result, the jury instructions failed to inform the jury of the applicable law. Consequently, Appellant’s conviction is reversed and remanded for a new trial.

Following a Shelby County jury trial, the Defendant, DeWayne Collier, was convicted of aggravated statutory rape. At the time of the crime, the Defendant was forty-two years old and the victim was fourteen years old. The trial court sentenced the Defendant to four years as a Range II, multiple offender. On appeal, the Defendant argues that the trial court erred in denying his motion for judgment of acquittal and that the evidence was insufficient to support his conviction because the fourteen-year-old victim was an accomplice and there was not sufficient corroborating evidence. After a thorough review of the record on appeal, we conclude that the victim is legally an accomplice regardless of the fact that she cannot be indicted for her own statutory rape. However, we also determine that there is additional evidence to adequately corroborate her testimony. Therefore, we conclude that the evidence is sufficient to support the Defendant’s conviction. We affirm the judgment of the trial court.