APPELLATE COURT OPINIONS

The defendant, Brandon Cole-Pugh, was convicted of being a felon in possession of a handgun, in violation of Tennessee Code Annotated section 39-17-1307(b)(1).  The evidence presented at trial suggested that the defendant obtained a handgun during a physical altercation, during which the handgun became loose, fell from another individual’s possession, and dropped to the floor.  Prior to the trial court’s instructions to the jury, defense counsel orally requested an instruction on the defense of necessity.  The trial court denied the request.  Based upon the evidence presented at trial, the briefs of the parties, the arguments of counsel, and the applicable law, we hold that the defense of necessity was fairly raised by the evidence and that the trial court erred in refusing to instruct the jury accordingly.  We further hold that Tennessee law does not preclude plenary review of a claim of error based on a trial court’s failure to instruct the jury on a general defense when the request was not made in writing.  We, therefore, reverse the judgment of the Court of Criminal Appeals and remand this case to the trial court for further proceedings consistent with this opinion. 

The Petitioner, Malik Hardin, filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily entered.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

A Madison County jury convicted the Defendant, Randall Ray Ward, of possession of cocaine with the intent to sell, possession of cocaine with the intent to deliver, and possession of illegal drug paraphernalia. The trial court merged the cocaine convictions and ordered that the Defendant serve ten years in confinement as a Range II, multiple offender. The trial court imposed a consecutive sentence of eleven months and twenty-nine days for the paraphernalia conviction. On appeal, the Defendant asserts that: (1) the evidence is insufficient to support his convictions; (2) the trial court erred when it admitted the Defendant’s statement to police; (3) the trial court erred when it instructed the jury regarding confessions; and (4) the trial court erred when it sentenced the Defendant. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

The trial court found that Employee was permanently and totally disabled following a work-related injury to his back in January 2012. Employer’s 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. Tenn. Sup. Ct. R. 51, § 1. After reviewing the evidence in the record and the parties’ arguments, we conclude that the evidence does not preponderate against the trial court’s decision and affirm the trial court’s judgment.

This is an unlawful detainer action in which the owner permitted the defendants to live in her house rent-free.  The owner was later declared incompetent, and her daughters/co-conservators sought to evict the defendants.  The general sessions court awarded the co-conservators possession, and the defendants appealed to circuit court.  Once the owner died, an administrator was substituted for the co-conservators as the plaintiff.  The circuit court awarded the administrator rent for the period between the date the detainer summons was filed and the date the owner died.  The defendants appealed, and we reverse the trial court’s judgment.  Neither the
co-conservators nor the administrator ever filed a pleading seeking an award of rent from the defendants; therefore, the trial court erred when it awarded rent to the administrator.

Defendant, Prentice Farrell Anderson, was indicted by the Madison County Grand Jury for one count each of possession of more than 0.5 ounce of marijuana with intent to sell; possession of more than 0.5 ounce of marijuana with intent to deliver; possession of 0.5 gram or more of cocaine with intent to sell; possession of 0.5 gram or more of cocaine with intent to deliver; unlawful possession of hydrocodone; possession with intent to use drug paraphernalia; driving with a canceled, suspended, or revoked license; and driving in violation of the window tint law. A jury found Defendant guilty as charged on all eight counts. The trial court merged Defendant’s convictions for possession with intent to sell and possession with intent to deliver marijuana, as well as his convictions for possession with intent to sell and possession with intent to deliver cocaine, and Defendant received a total effective sentence of ten years’ incarceration. In this appeal as of right, Defendant contends that the evidence was insufficient to support his convictions because the State failed to prove possession beyond a reasonable doubt. Having reviewed the record and the briefs of the parties, we affirm the judgments of the trial court.

The Defendant, Dusan Simic, was indicted for various offenses committed in the course of a series of robberies in July and August of 2017. The trial court granted the Defendant’s motion to suppress out-of-court identifications made by four victims on the basis that the photographic lineups were unduly suggestive. The trial court and subsequently this court granted interlocutory review. The State asserts that interlocutory review is proper and that the trial court erred in determining that the lineups were suggestive; the Defendant disagrees. We conclude that interlocutory appeal was improvidently granted. Accordingly, we dismiss the appeal and remand for further proceedings.

The Defendant, Todd Samuel Adcock, pled guilty to one count of sale of heroin, a class B felony. After entering his guilty plea, the trial court found the Defendant to be a Range III, persistent offender and sentenced him to twenty-five years’ incarceration. The trial court determined that the twenty-five-year sentence was to run consecutively to the Defendant’s previous eight-year sentence from Davidson County. On appeal, the Defendant contends that the trial court erred (1) by not merging his previous convictions and, thereby, sentencing the Defendant as a Range III, persistent offender and (2) by ordering the Defendant’s sentence to run consecutively to his Davidson County sentence. Following our review, we conclude that the trial court did not err and affirm the sentencing decision.

This case involves statutory interpretation of the requirements for service by private process servers in the General Sessions Courts and whether or not a party has been properly served.  Plaintiff obtained default judgments in General Sessions Court against two individuals, a man and a woman, who were living together.  Although the process server stated on the return that both parties had been served, only the man had been served.  Three years later, in an effort to aid in the execution on the default judgments, the plaintiff had subpoenas issued against both defendants, but only the woman was served.  The defendants then moved to quash the subpoena as against her and, additionally, to void the default judgments, alleging that the plaintiff had failed to properly serve them with the civil warrant and the subpoenas.  The General Sessions Court denied the motion, and the defendants thereafter appealed to the trial court.  Having found that only the man had been properly served with the civil warrant, the trial court affirmed the default judgment as against him and voided the default judgment as against the woman.  Additionally, the trial court found that, while the judgment was void as against the woman, she had been properly served with the subpoena and was thus required to respond to it.  Defendants appealed.  We affirm the judgment of the trial court as modified.

A forklift operator suffered injuries while operating his forklift within the confines of the trailer of a tractor-trailer. He sued the John Doe operator of the tractor-trailer, a trucking company, and a freight broker. Both the trucking company and the freight broker moved for summary judgment. The trial court granted the motions, dismissing the claims against them. On appeal, the forklift operator claims that some of the evidence filed in support of the motions for summary judgment was inadmissible and that there were disputed issues of material fact that precluded summary judgment. We conclude that the trial court properly granted summary judgment. 

The Defendant, Matt D. Polk, was convicted of one count of the sale of 0.5 grams or more of cocaine and one count of the sale less of than 0.5 grams of cocaine. The Defendant received an effective sentence of twenty-five years. On appeal, the Defendant argues that a video recording was not properly authenticated and that the trial court erred in allowing an expert who had not been disclosed to the defense prior to the day of trial to testify. We conclude that the recording was properly authenticated and that the trial court did not abuse its discretion in permitting the testimony, and we affirm the judgments of the trial court.

The Appellant, William Blake Kobeck, pled guilty in the Fayette County Circuit Court to vehicular homicide by recklessness. Pursuant to the plea agreement, he received a four-year sentence to be served on supervised probation with the trial court to determine his request for judicial diversion. After a hearing, the trial court denied judicial diversion. On appeal, the Appellant contends that the trial court erred by denying his request for judicial diversion. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

The Petitioner, Rodney Raymond Brewer, Jr., appeals from the denial of his petition for post-conviction relief. The Petitioner pled guilty to Class B felony possession of a schedule II controlled substance with the intent to sell in exchange for an agreed-upon Range I sentence of eleven years. On appeal, the Petitioner alleges that he received ineffective assistance due to trial counsel’s (1) failure to effectively investigate and argue the motion to suppress; (2) failure to investigate the Petitioner’s range classification; (3) failure to properly advise him regarding the law of constructive possession; (4) failure to argue for enforcement of the original nine-year plea offer; and (5) failure to file an appeal. After a thorough review of the record, we affirm the judgment of the post-conviction court.

A Shelby County jury convicted the Petitioner, Courtney Means, of three counts of aggravated robbery involving multiple victims, and the trial court sentenced him to an effective twenty-four-year sentence. This court affirmed his convictions and sentence. State v. Courtney Means, W2005-00682-CCA-R3-CD, 2006 WL 709206, at *1 (Tenn. Crim. App., at Jackson, Mar. 21, 2006), perm. app. denied (Tenn. Sept. 5, 2006). The Petitioner unsuccessfully filed a petition for post-conviction relief and a Tennessee Rule of Criminal Procedure 36.1 motion for relief from an illegal sentence. The Petitioner then filed a petition for a writ of habeas corpus alleging that his judgments are void because the court lacked authority to sentence him. After review, we affirm the habeas corpus court’s judgment.

A credit union initiated this action on December 12, 2007, by filing a civil warrant to recover an amount alleged to be due on an account. On June 14, 2011, after several unsuccessful attempts to serve the warrant, a return on service was filed indicating that the defendant had been served with the warrant; a default judgment in the amount of $13,717.79 was entered on July 25, 2011. The credit union levied on the defendant’s bank account on April 25, 2018, following which the defendant moved the general sessions court to set aside the judgment on the ground that service of the warrant was defective and the judgment was void; the court granted the motion and set the case for trial. Before the trial could be held, the credit union appealed to the circuit court, where the defendant moved for summary judgment to affirm the general sessions court’s order setting aside the judgment. The circuit court dismissed the action pursuant to Tennessee Rule of Civil Procedure Rule 12.02(3), holding that service of the warrant was not in compliance with the applicable statutes. The credit union appeals. Upon our de novo review, we have determined that the record does not show that the defendant was duly served with the warrant that led to the default judgment and, as a result, the judgment entered against him is void. Because of the current proceeding, however, trial on the merits has not been held. Accordingly, we affirm the holding of the circuit court that the judgment of the general sessions court is void, modify the judgment of the circuit court to reinstate the credit union’s cause of action, and remand the case to the circuit court with instruction to remand it to the general sessions court for trial.

In November 2017, the Madison County Grand Jury indicted Defendant, Demetrius J. Johnson, for various drug and firearm offenses. Defendant filed a motion to suppress, which was denied by the trial court. Defendant then pled guilty to the offenses, attempting to reserve the following certified question of law for appeal: “Did the affidavit in support of the search warrant establish probable cause within the four corners of said affidavit?” After review, we conclude that this court does not have jurisdiction to address the certified question because the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). We, therefore, dismiss the appeal.

This is a termination of parental rights case. After the death of the mother, petitioner— the child’s maternal grandmother—sought to terminate the father’s parental rights on four grounds: abandonment by failure to support the child; abandonment by failure to support the mother; abandonment by failure to visit the child; and failure to manifest ability to take custody of the child. The trial court found that clear and convincing evidence existed to terminate father’s parental rights only on the ground of abandonment by failure to support the child. The trial court further found that termination was in the best interests of the child. We affirm.

This is a termination of parental rights case. Mother/Appellant appeals the trial court’s termination of her parental rights to the minor child on the grounds of: (1) abandonment by willful failure to visit and to support, Tenn. Code Ann. § 36-1-113(g)(1); (2) persistence of the conditions that led to the child’s removal, Tenn. Code Ann. § 36-1- 113(g)(3); and (3) failure to manifest an ability and willingness to assume custody or financial responsibility for the child, Tenn. Code Ann. § 36-1-113(g)(14). Mother also appeals the trial court’s determination that termination of her parental rights is in the child’s best interest. Because Appellee did not meet her burden to show that Mother willfully failed to support the child, and because Appellee did not meet her burden to show proof of an order in which the child was adjudicated dependent and neglected, we reverse the trial court’s findings as to these grounds. We affirm the trial court’s termination of Mother’s parental rights on the grounds of abandonment by willful failure to visit and failure to manifest an ability and willingness to assume custody or financial responsibility, and on its finding that termination of Appellant’s parental rights is in the child’s best interest.

The Appellant, Talmadge D. Murphy, appeals the trial court’s revocation of his probationary sentence, specifically arguing that the trial court abused its discretion by considering evidence not elicited by either party during the hearing.  Upon review, we reverse the judgment of the trial court and remand for a new revocation hearing. 

The Defendant, Nathaniel David Labrecque, pleaded guilty to two counts of failure to yield the right of way causing serious bodily injury. See T.C.A. §§ 55-8-129, 55-8-197(a)(3) (2018). He received an effective sentence of six months’ incarceration, and the trial court ordered the Defendant to pay restitution in the amount of $500,000. On appeal, the Defendant contends that the trial court erred by (1) ordering restitution without assessing his ability to pay and (2) ordering restitution when there was no evidence substantiating the victims’ losses. We affirm the Defendant’s convictions, but we reverse the trial court’s restitution order and remand for entry of amended judgments.

I agree with the majority’s conclusion that the trial court’s restitution order must be reversed. I write separately, however, to address the State’s indicting the Defendant for, and the Defendant’s ultimately pleading guilty to, two counts of failure to yield the right of way resulting in serious bodily injury. I conclude that under plain error, the Defendant’s dual convictions violate principles of double jeopardy.

The Cheatham County Grand Jury indicted Nicholas Tyler Beckham, Defendant, on twenty-three counts of aggravated sexual exploitation of a minor. Pursuant to a plea agreement, Defendant pled guilty to counts one through five, with an agreed sentence of five years on each count, counts one through four to be served consecutively, with count five to run concurrently to count four, for an effective sentence of twenty years at thirty percent, with the manner of service to be determined by the court. The remainder of the counts were dismissed. Following a sentencing hearing, the trial court ordered Defendant to serve his sentence in the Tennessee Department of Correction. On appeal, Defendant claims the trial court abused its discretion when it denied alternative sentencing for Defendant. After a thorough review of the record and applicable case law, we affirm the judgments of the trial court.

A Humphreys County jury convicted the Defendant-Appellant, Elizabeth Lynn Schmitz, of failure to have a license to operate a pawnshop in violation of Tennessee Code Annotated section 45-6-205, a Class A misdemeanor, for which she received a probationary sentence of eleven-months and twenty-nine days. In this appeal as of right, the Defendant argues that the trial court erred by not providing her a court reporter during trial and that the evidence was insufficient to sustain her conviction. Upon review, we affirm the judgment of the trial court.

The Defendant-Appellant, Henry Nicholas Brown, entered a guilty plea in the Roane County Criminal Court to aggravated assault (count one), evading arrest (count two), and reckless endangerment (count three), with the trial court to determine the length and manner of service of his sentence.  Following a sentencing hearing, the trial court sentenced the Defendant to six, four, and two years, respectively.  The trial court ordered these sentences to be served consecutively, for an effective sentence of twelve years in the Tennessee Department of Correction. In this appeal as of right, the Defendant contends that the trial court erred in imposing consecutive sentences. Upon our review, we affirm the judgment of the trial court.

A defendant filed a motion to recuse the trial judge one month prior to trial; the trial judge responded to the motion and entered an order denying it two weeks prior to trial. Defendant appeals, asserting that the court erred in denying the motion and in failing to notify him that the court would proceed with the trial as previously set. Discerning no error, we affirm the judgment.