APPELLATE COURT OPINIONS

The Petitioners seek accelerated interlocutory review of an order denying their motion to
recuse. However, because the Petitioners’ filings fail to comply with Tennessee Supreme
Court Rule 10B, we dismiss the appeal.

Mother appeals the termination of her parental rights.  The trial court found four statutory grounds for termination: abandonment by failure to visit, abandonment by failure to support, persistent conditions, and failure to manifest an ability and willingness to assume custody.  The trial court also concluded termination was in the child’s best interest.  Neither the guardian ad litem nor Mother received notice of the trial court’s Order.  Becoming aware of the trial court’s Order more than thirty days after the decision, Mother filed a motion asking the trial court to set aside and then re-enter its final order, seeking to ensure that she could still appeal.  The trial court granted Mother’s motion.  Mother appeals, arguing the trial court erred with regard to each ground of termination that it found and that its conclusion as to the best interest of the child was also in error.  On appeal, Petitioners, paternal grandparents seeking to terminate Mother’s parental rights, argue the trial court erred in setting aside and then re-entering its termination order and, consequently, that this court lacks jurisdiction over Mother’s appeal.  The Petitioners also defend the trial court’s termination decision on the merits.  We conclude this court has jurisdiction over Mother’s appeal, that the trial court did not err in finding that grounds were established for termination, and that the trial court did not err in finding that termination is in the best interest of the child.

The trial court furloughed the Defendant, Brady O’Brien Holmgren, to a mental health court program following his convictions for domestic assault and aggravated assault. The furlough was later revoked, and he was ordered to serve his sentence. Nearly a year later, the Defendant filed a motion to modify his sentence. The trial court denied the motion, and the Defendant appealed. Upon our review, we hold that the Defendant has waived any issues by failing to properly prepare his brief in accordance with Tennessee Rule of Appellate Procedure 27. Accordingly, we respectfully affirm the trial court’s judgment.

A homeowner’s association sought to enforce a recorded declaration of restrictive
covenants against a property owner in a subdivision. The property owner moved to dismiss
on the basis that the declaration did not appear in her chain of title and did not expressly
apply to her property. The HOA contended that language in the property owner’s chain of
title was sufficient to make the property subject to the restrictive covenants. And if not,
the restrictive covenants were enforceable as equitable servitudes. Without notice to the
parties, the trial court dismissed the action on an unasserted basis. We reverse.

In this consolidated appeal, the defendants, Emily Ashton Williams and Joel Scott
Sweeney, appeal their Davidson County Criminal Court jury convictions of aggravated
child neglect. Defendant Sweeney argues that the evidence was insufficient to support his
conviction, that the trial court committed plain error by failing to require the State to make
an election of offenses, and that the trial court erred in sentencing him. Defendant Williams
argues that the evidence was insufficient to support her conviction. Discerning no
reversible error, we affirm.

Petitioner, Lindsay Lowe, was convicted by a Sumner County jury of two counts of first
degree murder and two counts of aggravated child abuse for killing her newborn twin sons
shortly after their birth at her parents’ home and concealing their bodies in a laundry basket.
State v. Lowe, 552 S.W.3d 842, 846-48 (Tenn. 2018), cert. denied, 139 S. Ct. 1204 (2019).
Her convictions and resulting life sentence were affirmed on direct appeal, and the
Tennessee Supreme Court affirmed. Id. Petitioner unsuccessfully sought rehearing.
Petitioner then sought a writ of certiorari in the United States Supreme Court, which was
denied. Id. Petitioner ultimately filed an untimely petition for post-conviction relief in
which she made innumerable allegations of ineffective assistance of counsel as well as
several constitutional violations that she argued necessitated reversal of her convictions.
Petitioner also requested due process tolling of the post-conviction statute of limitations
based on erroneous legal advice about when the statute of limitations commenced.1 The
post-conviction court determined due process tolling was warranted and permitted
Petitioner to have a lengthy hearing on the merits of the post-conviction petition. After the
hearing, the post-conviction court granted post-conviction relief on the basis that a juror
was presumptively biased against Petitioner, violating her right to a fair trial, and that trial
counsel’s failure to remove the juror violated Petitioner’s right to effective assistance of
counsel. The post-conviction court did not address the merits of any of the remaining
claims in the petition. In this timely State appeal, we determine first that the postconviction
court improperly granted due process tolling of the statute of limitations for
post-conviction relief. Additionally, because the post-conviction court went on to grant
post-conviction relief, we review those findings of fact and conclusions of law and
determine that the post-conviction court also erred in finding that the juror was
presumptively biased and that trial counsel was ineffective. As a result, we reverse and
remand the judgment of the post-conviction court. All of Petitioner’s convictions are
reinstated and her petition for post-conviction relief is dismissed.

The Defendant, Aaron Michael King, appeals his jury convictions for rape, rape of a child, statutory rape by an authority figure, incest, aggravated sexual battery, especially aggravated sexual exploitation of a minor, tampering with evidence, especially aggravated kidnapping, and aggravated kidnapping. For these convictions, he received an effective seventy-seven-year sentence. On appeal, the Defendant argues that (1) there was insufficient evidence to support his kidnapping convictions because they were merely incidental to the contemporaneous rapes; (2) the trial court erred by failing to grant his motion for a mistrial after a State’s witness impermissibly vouched for the victim’s credibility; (3) the trial court erred by failing to grant his motion for new trial where defense counsel, who was acting as treasurer for the prosecuting assistant district attorney general’s campaign for a general sessions court judgeship during the Defendant’s trial, had an impermissible conflict of interest; and (4) the cumulative effect of these errors entitle him to a new trial. After our review, we conclude that sufficient evidence supports the challenged convictions, that the trial court properly denied a mistrial, and that the Defendant is not entitled to relief pursuant to the cumulative error doctrine. We further conclude that no adverse effect resulted from the improper conflict of interest. We affirm the judgments of the trial court.

I join in the majority in concluding that the evidence is sufficient to support the
Defendant’s kidnapping convictions and that the trial court did not err in denying the
motion for a mistrial. However, I part ways with the majority’s analysis and conclusion
regarding the court’s denial of a new trial based upon defense counsel’s personal,
concurrent conflict of interests. For the reasons that follow, I conclude that the record fails
to support a conclusion that the Defendant was assured his constitutional right to a fair trial
and that due process requires that he receive a new trial. See U.S. Const. amends. VI
(guaranteeing a criminal defendant’s right to counsel), XIV, §1 (no State shall “deprive
any person of life, liberty, or property, without due process of law”); Tenn. Const. art. 1,
§§ 6 (guaranteeing a criminal defendant’s right to a jury trial), 9 (rights of a criminal
defendant); Strickland v. Washington, 466 U.S. 668, 684-85 (1984) (stating that the right
to counsel exists to protect a criminal defendant’s fundamental right to a fair trial, which
is rooted in the Due Process Clause); see also Smith v. State, 357 S.W.3d 322 , 336 (Tenn.
2011).

In this case of first impression, we consider whether a defendant can be convicted of
criminally negligent homicide when he incites, encourages or coerces another person to
commit suicide and whether the State of Tennessee has territorial jurisdiction over a
defendant when he affirmatively reaches out to Tennessee via electronic means. A Knox
County jury convicted Defendant, Hayden Jennings Berkebile, of criminally negligent
homicide after the victim, Grace Anne Sparks, shot and killed herself for Defendant’s
sexual pleasure while on a video call with Defendant. Defendant argues on appeal that: (1)
the evidence is insufficient to support his conviction because (a) the State did not prove
that Defendant’s actions were the proximate cause of the victim’s death, and (b) the
negligent homicide statute as construed here violates the First Amendment to the United
States Constitution; (2) the State did not establish territorial jurisdiction over Defendant
because he was in Indiana at the time of the victim’s death and only communicated with
her electronically; (3) the trial court erred in admitting an alleged hearsay statement by the
investigator; (4) the trial court erred in allowing the jury to utilize a transcript of
Defendant’s interrogation that contained inaccurate transcriptions; (5) cumulative error
requires a new trial; and (6) the trial court erred in denying judicial diversion because it
relied on evidence not in the record. After reviewing the parties’ briefs and oral arguments,
the record, and the relevant law, we affirm in all respects.

In this case, the State relied exclusively upon online communications sent between
the Defendant, who resided in Indiana, and the suicide decedent, who resided in Tennessee,
to establish a conviction of criminally negligent homicide. In my view, the State failed to
establish the essential elements of territorial jurisdiction and proximate cause. No matter
how “dark” or “diabolical” the online communications leading up to the decedent’s death
may have been, there is simply no law in Tennessee making it a crime to verbally persuade
or coerce someone to commit suicide.1 Because Tennessee has yet to criminalize
incitement, inducement, or encouragement to commit suicide, words alone cannot serve as
the basis for a criminal conviction.2 Accordingly, I must respectfully dissent

Petitioner, Brian C. Frelix, appeals from the Williamson County Circuit Court’s denial of his petition for post-conviction relief related to his convictions for four counts of aggravated robbery, four counts of aggravated assault, one count of aggravated burglary, and one count of theft of property valued at $1,000 or more, but less than $10,000.  Petitioner argues that the post-conviction court erred in denying relief based upon his claims that he received ineffective assistance of counsel because trial counsel failed to (1) raise a Double Jeopardy issue at trial or on direct appeal related to two of his aggravated robbery charges; and (2) raise a Brady issue on direct appeal related to the State’s failure to disclose three letters sent to the police by a jailhouse informant.  Petitioner also raises a freestanding claim that the State improperly withheld the letters in violation of Brady v. Maryland, 373 U.S. 83 (1963).  After a thorough review of the record, we affirm the judgment of the post-conviction court.

The Defendant, Jonathan E. Woodruff, pled guilty to the offense of tampering with evidence. The trial court imposed a five-year sentence to be served in a community corrections program and later on probation. Thereafter, the Defendant was alleged to have engaged in new criminal conduct by possessing fentanyl, and following a hearing, the trial court fully revoked the Defendant’s suspended sentence. In this appeal, the Defendant argues that a violation was not established by a preponderance of the evidence and that he was denied the opportunity to review a video of the alleged misconduct. Upon our review, we respectfully disagree and affirm the judgment of the trial court.

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to two of her children. The trial court found that two grounds had been proven and that termination of the mother’s parental rights was in the children’s best interests. Based on these findings, the court terminated the mother’s parental rights. The mother appeals. We reverse the trial court’s finding that the ground of persistence of conditions has been proven but affirm the trial court’s finding that another ground for termination has been proven and that termination of the mother’s parental rights is in the children’s best interests. Thus, we affirm the termination of the mother’s parental rights.

This is a grandparent visitation case brought by the maternal grandmother of the child at issue. When the trial court dismissed the grandmother’s petition following a trial, it held, among other things, that there was no danger of substantial harm to the child in the absence of visitation. Although the trial court ruled in favor of the child’s father on the merits of the underlying case, it ultimately rejected the father’s request to recover attorney’s fees for his defense of the lawsuit. For the reasons stated herein, we affirm the trial court’s dismissal of the grandmother’s petition and also affirm the trial court’s denial of attorney’s fees to the father.

The plaintiff appeals the dismissal of her complaint against her former landlord. Because
the plaintiff did not file her notice of appeal within thirty days after entry of the dismissal
order as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

This is the second post-divorce contempt case between the parties. While Mother’s petition
for contempt was pending in the trial court, Father filed a petition alleging that Mother was
guilty of 29 counts of criminal contempt for various violations of the parties’ permanent
parenting plan and the mandatory “Parental Bill of Rights” incorporated into the plan. The
trial court: (1) found Mother guilty of seven counts of contempt; (2) sentenced Mother to
29 days in jail; and (3) awarded Father a portion of his attorney’s fees and costs. Mother
appeals. Because Father failed to meet his burden to show, beyond a reasonable doubt,
that Mother was in criminal contempt of the parenting plan, we reverse the trial court’s
order.

The Defendant, Edward Honeycutt, Jr., pleaded guilty to one count of initiating the process to manufacture
methamphetamine and two counts of child endangerment, in exchange for an effective eight-year sentence,
suspended to ten years of probation, after service of sixty-one days in confinement. After multiple violations
and revocation hearings, the trial court revoked the Defendant’s probation sentence and ordered it into
execution, granting “street time” credit from October 25, 2021 to May 6, 2022. The Defendant filed a Rule 36
motion, claiming “clerical mistakes in the judgment orders” related to whether the Defendant’s sentence was a
probation sentence or a sentence served on community corrections. The Defendant argued that he was
entitled to time served in community corrections from September 4, 2012, rather than October 25, 2021,
because his sentence was a community corrections sentence. The trial court denied the motion, and the
Defendant appeals, maintaining that he has been deprived of time served in community corrections. After
review of the record, we affirm the trial court’s judgment.

This is a probate matter which concerns whether a decedent devised his widow a parcel of real estate in fee simple absolute or whether the real property at issue was to be placed in trust for the benefit of decedent’s children. The probate court rendered a declaratory judgment determining that decedent devised his widow the parcel in fee simple absolute. For the reasons stated herein, we affirm.

The petitioner, Charles Thomas Johnson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel. Following a thorough review of the record, the briefs, and oral arguments of the parties, we affirm the judgment of the post-conviction court.

This appeal arises out of a dispute between the homeowners’ association for a planned
development and the successor owner of the development over the obligations of the
successor owner. We agree with the trial court’s ruling that the successor owner assumed
all of the previous owner’s rights and responsibilities as the declarant under the
development’s recorded restrictive covenants. We affirm the trial court’s judgment in all
respects.

The Appellant, Alysha J. Barr, was convicted of vehicular assault, driving under the influence (“DUI”), and reckless endangerment with a deadly weapon.  On appeal, she argues that the trial court erred by denying her motion to suppress evidence resulting from a blood draw at the scene of the collision because: (1) it was obtained pursuant to an unconstitutional search; and (2) she did not sign the waiver form as statutorily required at the time of the offense.  Tenn. Code Ann. § 55-10-406 (2017) (amended 2019).  She also argues that the trial court erred by admitting expert testimony based on an untrustworthy experiment.  After review, we conclude that no reversible error occurred and affirm the trial court’s judgments.

After a bench trial, Defendant, Christopher C. White, was found guilty of one count of theft valued at $10,000 or more but less than $60,000. The trial court imposed a four-year sentence, suspended to probation, and ordered Defendant to pay $10,228 in restitution. On appeal, Defendant argues (1) the evidence was insufficient to support his conviction; (2) this court lacks subject matter jurisdiction to consider Defendant’s appeal; and (3) collateral estoppel required the trial court to dismiss the case. After review, we conclude the evidence is insufficient to support Defendant’s conviction for theft. Accordingly, we reverse the judgment of the trial court, vacate Defendant’s conviction, and dismiss the case.

Tory Keith Mote, Defendant, appeals his convictions for aggravated assault, domestic
assault, and interference with a 911 call after a bench trial. On appeal, Defendant argues
that the evidence was insufficient to support the conviction for aggravated assault. Because
the evidence was sufficient, we affirm the judgments of the trial court.

This appeal concerns the denial of a motion to set aside default judgment and the award of
damages in a premises liability action. After sustaining injuries from a shooting in a
Nashville nightclub, Cedric Crutcher (“Plaintiff”), filed a premises liability action against
various co-defendants, including the owner and operator of the nightclub, Paul Eichel
(“Defendant”), and the owners of the building where the nightclub was located (“the
Ellises”). The Ellises filed an answer to Plaintiff’s complaint and a cross-claim against
Defendant. When Defendant failed to respond to Plaintiff’s complaint, Plaintiff filed a
motion for default judgment, which the trial court granted. When Defendant failed to
respond to the Ellises cross-claim, the Ellises also filed a motion for default judgment,
which the court granted. Thereafter, the only remaining issues were the amount of damages
that the Ellises and Plaintiff were entitled to recover from Defendant. Following a hearing
on damages, the court awarded Plaintiff $300,000 against Defendant for his pain and
suffering, and awarded the Ellises $31,745.76 against Defendant for the attorney’s fees
they incurred in defending the action as authorized under their lease agreement. Defendant
filed a motion to set aside the default judgment pertaining to Plaintiff’s premises liability
claim, which the court denied. Defendant then filed a motion to alter or amend the judgment
relating to Plaintiff’s damages, which the court granted. Following a second evidentiary
hearing on Plaintiff’s damages, the court awarded Plaintiff a judgment against Defendant
in the amount of $15,014.19 for medical expenses and $300,000 in noneconomic damages.
Defendant appeals the trial court’s denial of his motion to set aside default judgment in
favor of Plaintiff, as well as the award of damages to Plaintiff. Finding no error, we affirm.

This is the second interlocutory recusal appeal in this conservatorship action, filed by two attorneys in the case. In the first recusal appeal, the Court of Appeals entered an order staying all trial court proceedings. The Court of Appeals then issued an opinion affirming denial of the recusal motion, stating that the stay was lifted, and remanding the case to the trial court. Before the appellate mandate issued, the attorneys filed a second motion for the trial court judge to recuse; this was denied as well. The attorneys then filed this second petition for recusal appeal. They later filed a motion in the Court of Appeals arguing that trial court orders entered after the Court of Appeals issued its opinion in the first recusal appeal, but before the mandate issued, are void for lack of subject matter jurisdiction. The Court of Appeals agreed and held the orders were void. The counterpetitioners and co-conservators have filed an accelerated application for permission to appeal in this Court, and we ordered the attorneys to file a response. Having reviewed the application for permission to appeal, the answer, all appendices, and the applicable law, we grant the application, and dispense with additional briefing and oral argument. We hold that the stay imposed by the Court of Appeals in the first recusal appeal did not divest the trial court of subject matter jurisdiction over the case. We further hold that the attorneys waived any other argument that orders entered by the trial court should be vacated because they were entered prior to issuance of the mandate. Therefore, we reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this decision.