APPELLATE COURT OPINIONS

This is a direct appeal as of right from convictions on a jury verdict of rape of a child and assault. The Defendant, Timmie D. Boston, was sentenced as a Range I offender to twenty years' imprisonment for the rape conviction and six months for assault, with the two sentences to be served concurrently. The Defendant argues two issues on appeal: (1) that the evidence was insufficient to find the Defendant guilty of rape of a child, and (2) that the trial court erred in imposing a mid-range sentence. We affirm the judgments of the trial court.

Adhering to my longstanding view that a clear and convincing evidence standard is totally incompatible with a preponderance of the evidence standard both at the trial level and on appeal, I disagree with a portion of majority opinion dealing with such issue.

The Petitioner, Anthony Murff, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because Petitioner has failed to allege a ground entitling him to habeas corpus relief, we grant the State's motion and affirm the judgment of the lower court.

We granted permission to appeal in this case pursuant to Tennessee Rule of Appellate Procedure 11 to determine whether the trial court properly denied the defendant’s motion to suppress evidence obtained during the investigation of a shooting death. To resolve this issue, we must determine whether the investigators had probable cause to arrest the defendant and whether the delay in taking him before a magistrate for a judicial determination of probable cause should independently require the exclusion of the evidence obtained during the first few hours of his detention. Because we are of the opinion that the officers had probable cause to arrest the defendant, we conclude that the evidence recovered at the scene was not subject to suppression. As to the defendant’s claim of “unreasonable delay,” it is obvious that the defendant was not taken before a magistrate for a judicial determination of probable cause within a constitutionally reasonable time. However, the evidence the defendant sought to suppress was obtained during the first few hours of his arrest. Thus, these evidentiary items were not tainted by exploitation of the constitutional violation and are not, therefore, subject to suppression. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

The trial court terminated the parental rights of F.S.B. ("Father") with respect to his two minor children, K.L.B. (DOB: September 19, 1997) and S.L.B. (DOB: July 21, 1999). Father appeals, arguing, inter alia, that the evidence preponderates against the trial court's finding, stated to be by clear and convincing evidence, that grounds for termination exist. We affirm.

The Town of Cornersville filed suit against a local business seeking injunctive relief to require compliance with its zoning ordinance. During the pendency of the matter, the trial court found the local business in contempt on three separate occasions for failure to comply with orders of the court requiring compliance with the ordinance. At a hearing on the merits, the trial court found that since the property at issue was within the town limits, it was subject to the zoning ordinance. Furthermore, the court found the business in contempt for failure to comply with its prior orders and thus subject to a fine of fifty dollars ($50.00) per day. The business appeals insisting that part of the subject property is not within the town's zoning jurisdiction, that the trial court exceeded its statutory contempt authority, and that the town is estopped from raising any complaint regarding zoning noncompliance. We agree with the trial court and affirm its judgment.

The petition sought judicial review by way of certiorari to review the Warden's action in terminating his wife's visitation for inappropriate behavior. We affirm the dismissal of the petition on grounds of subject matter jurisdiction and failure to state a claim.

We granted the Tenn. R. App. P. 9 application of the AIG defendants to review their claim that an order of the trial court entered December 31, 2003, nunc pro tunc December 22, 2003, pertaining to pre-trial discovery is "overly broad, unduly burdensome, and extraordinarily costly both in terms of human effort and financial expense, and that disclosure of the documents ordered by the trial court would violate the [federal] Gramm-Leach-Bliley Act." We have determined that the AIG defendants' application was improvidently granted. Accordingly, this appeal is dismissed. This case is remanded to the trial court for further proceedings as outlined in this opinion.

The appellant principally alleges that she had a plea agreement with the State that if she pleaded guilty to the charge of vehicular assault, the punishment for which would run consecutively to prior sentences, she would be paroled after serving thirty percent of her sentence, and that the State, in effect, reneged on the agreement. She presented no evidence other than her own assertions of the plea, and her petition was denied.

This appeal involves a former husband's efforts to avoid paying spousal support. Less than one year after the parties' divorce, the husband filed a petition in the Circuit Court for Davidson County seeking to reduce his spousal support obligation because his income had decreased. He also unilaterally stopped paying spousal support. Following a bench trial, the trial court denied the former husband's petition to modify his support payments based on its conclusion that he was wilfully underemployed. The trial court also found the former husband to be in criminal contempt for wilfully failing to make five spousal support payments. The husband appeals. We affirm the trial court's conclusion that the former husband is wilfully underemployed and two of the five counts of criminal contempt.

The defendant, Brandon Wallace, was convicted by a jury of two counts of attempted first degree murder (Counts 1 and 2); attempted second degree murder (Count 3); attempted especially aggravated robbery (Count 4); especially aggravated burglary (Count 5); and felony reckless endangerment (Count 6). He was sentenced as a Range I, standard offender to twenty-three years in the Department of Correction for Counts 1 and 2, to be served consecutively; ten years for Count 3, to be served concurrently with Counts 1 and 6; ten years for Count 4 which the trial court merged with Count 5, for which he also was sentenced to ten years, to be served consecutively to Count 1 and concurrently with Count 2; and two years for Count 6, to be served concurrently with Counts 1 and 3, for a total effective sentence of forty-six years. Additionally, the jury set fines totaling $138,000, which were reduced by the trial court to $1,000. The defendant raises two issues on appeal: (1) whether the evidence was sufficient to support his convictions, excluding his felony reckless endangerment conviction; and (2) whether the trial court erred in sentencing. Following our review, we affirm the judgments of the trial court but remand for resentencing and for entry of corrected judgments reflecting the offense date as July 1, 2002.

The Petitioner, Robert L. Smith, appeals from the trial court's dismissal of his petition for post-conviction relief. The trial court found the petition be barred by the applicable statute of limitations and that the Petitioner had filed previous petitions that were resolved on the merits. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The defendant, Michael Lebron Anderson, was convicted of burglary of a building other than a habitation, a Class D felony, and was sentenced to twelve years in the Department of Correction. On appeal, the defendant contends that the trial court erred by allowing hearsay statements of eyewitnesses to be introduced through the testimony of a police officer as an excited utterance, thereby violating his right to confront witnesses against him. After careful review of the record and the parties' briefs, we affirm the judgment of the trial court.

The Appellant, Christopher Franklin Waddell, appeals the sentencing decision of the Sumner County Criminal Court which resulted in the imposition of an effective thirty-year sentence. Under the terms of a plea agreement, Waddell pled guilty to two counts of aggravated assault, four counts of attempted aggravated robbery, and three counts of coercion of a witness. On appeal, Waddell argues that the trial court erred: (1) in its application of enhancing factors with respect to his aggravated assault convictions; (2) in imposing consecutive sentences; and (3) in denying an alternative sentence. After review, we affirm.

The defendant, Aaron T. Binkley, pled guilty to forgery, a Class D felony, and was sentenced as a Range One standard offender to two years in the Department of Correction. On appeal, the defendant argues that the trial court erred in denying him alternative sentencing. Upon review, we affirm the judgment of the trial court.

The defendant, Joseph Barajar, originally charged with premeditated first degree murder, was convicted of second degree murder. The trial court ordered a twenty-five-year sentence in the Department of Correction. In this appeal of right, the defendant challenges the sufficiency of the evidence, cites error in the admission of the evidence, and asserts that his sentence is excessive. See Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). The sentence must be modified to twenty-two years; otherwise, the judgment of the trial court is affirmed.

This appeal involves a customer who tripped over a floor mat while waiting in a cashier's line at a home improvement store. The customer filed suit against the store in the Circuit Court for Davidson County, and a jury returned a verdict for the store after determining that the customer was sixty-five percent at fault for his injuries. The customer asserts on this appeal that the evidence does not support the jury's verdict. We affirm the judgment.

The state was granted an extraordinary appeal pursuant to Rule 10, T.R.A.P., to challenge the Lincoln County Circuit Court's denying its motion to use statements made by the defendant, Braddie Eric Sullivan, to his attorney for impeachment purposes in his first degree murder and especially aggravated robbery trial. We affirm the trial court's denial of the state's motion.

This appeal involves a lawsuit brought by a prison inmate against his former wife for defamation and failure to properly care for their child including the failure to facilitate visitation. The trial court dismissed the complaint after determining that the inmate's slander claim was barred by the statute of limitations and that the remainder of the complaint failed to state a claim for which relief could be granted. We affirm the judgment.

A Knox County Criminal Court jury convicted the defendant, Jeffrey Martin Reaves, of voluntary manslaughter, a Class C felony, attempted reckless homicide, a Class E felony, and misdemeanor reckless endangerment, a Class A misdemeanor, and the trial court sentenced him as a Range II, multiple offender to an effective sentence of ten years in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient to support his convictions, that the trial court erred in applying certain enhancement factors, and that it erred in ordering consecutive sentencing. Because attempted reckless homicide is not a crime in Tennessee, we vacate the defendant's conviction for that count under plain error review. In all other respects, we affirm the judgments of the trial court.

Bruce Varner seeks review of the trial court's dismissal of his Petition to Modify Custody. The trial court dismissed the petition at the close of the petitioner's proof, holding that petitioner had failed to carry his burden of proof that a change of custody was in the best interest of the child. The trial court assessed attorney's fees and costs to the petitioner. We affirm the decision of the trial court.

This case arises out of an action filed by the former client of an attorney, seeking damages pursuant to the Tennessee Consumer Protection Act and theories of breach of contract, fraudulent
misrepresentation, and common law fraud. Appellees filed a motion for summary judgment in the
trial court below, and the court granted the motion. Appellant now seeks review by this Court, and,
for the following reasons, we remand for further proceedings consistent with this opinion.
 

This Tenn. R. App. P. 9 interlocutory appeal concerns a father's efforts to set aside a default judgment granting custody of his daughter to the child's maternal grandparents. The grandparents asserted in their petition for custody that the father's whereabouts were unknown and they therefore served their petition on the father by publication in a Lebanon, Tennessee newspaper. Two and one-half years later, the father filed a motion to set aside the custody order asserting that service by publication was insufficient because the grandparents knew or should have known he was residing in Greensboro, North Carolina at the time they filed their petition for custody. We have determined that the default judgment is void for lack of personal jurisdiction and we thus reverse the trial court's order denying the father's motion to set aside.

The petitioner, Arzolia Charles Goines, appeals the trial court's dismissal of his petition for post-conviction relief. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20. See Tenn. Ct. Crim. App. R 20. The petition was properly dismissed as time-barred. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Following their divorce in 1995, Wife filed a petition for contempt against Husband in 1997, alleging Husband failed to comply with certain provisions of the parties’ marital dissolution agreement. Husband filed an answer and submitted his counter-petition for modification of his child support obligation based on changed circumstances. Wife, in turn, filed a motion asking the court to determine Husband’s child support obligation following his receipt of a large severance payment from his previous employer. After holding a hearing on the parties’ respective petitions, the trial court entered one order addressing the visitation of the parties’ minor daughter and another order addressing the financial issues. In the order addressing the financial issues, the trial court increased Husband’s base child support obligation, ordered Husband to pay additional child support in various amounts pursuant to the marital dissolution agreement, ordered Husband to pay additional amounts from improperly withheld taxes on the exercise of certain stock appreciation rights, and ordered Husband to pay Wife’s attorney’s fees. For the reasons set forth herein, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.