APPELLATE COURT OPINIONS

This appeal follows a jury trial in which the plaintiff was awarded $6,500 for damage to his automobile. The plaintiff raises several issues for our consideration. Two of the issues pertain to pretrial evidentiary rulings made by the trial court; however, the plaintiff failed to raise these issues in his motion for new trial. Because the plaintiff failed to raise these issues in his motion for new trial, they are waived under Rule 3 of the Tennessee Rules of Appellate Procedure. The remaining issues concern whether the trial court properly admitted the defendant’s valuation evidence at trial and whether the evidence at trial was sufficient to support the jury’s verdict. Although the plaintiff raised these issues in his motion for new trial, he failed to provide this court with a transcript of the evidence or a statement of the evidence. Without a fair and accurate record of what transpired at trial, we are unable conduct a review of these issues. Therefore, we affirm the judgment of the trial court in all respects.

The defendant, Martha Ann McClancy, appeals her Monroe County Criminal Court jury convictions of attempted first degree murder and conspiracy to commit first degree murder, arguing that the trial court erred by denying her motion to suppress photographs of the scene taken by her co-conspirator Charles Kaczmarczyk, her motion in limine to exclude evidence of acts committed following the death of the victim, and her motion for a mistrial; that the trial court erred by admitting photographs of the victim taken during the autopsy; that the trial court’s making negative comments to and about her in front of the jury deprived her of the right to a fair trial; that the evidence was insufficient to support her convictions; and that the trial court erred by imposing consecutive sentences. The State concedes, and we agree, that the trial court erred by imposing consecutive sentences in this case. Instead, because Code section 39-12-106 prohibits the imposition of dual convictions for two inchoate offenses designed to achieve the same objective, the trial court should have merged the defendant’s convictions. Thus, we affirm the jury verdicts, reverse the imposition of consecutive sentences, and remand the case for the entry of corrected judgment forms reflecting that the convictions are merged.

The Defendant-Appellant, Gregory Tyrone Dotson, appeals from his conviction of voluntary manslaughter by a Davidson County jury. In this appeal as of right, the sole issues presented for our review are whether the evidence is sufficient to support his conviction and whether the trial court properly imposed his sentence. Upon our review, we affirm the conviction of the trial court. However, we reverse and vacate the Defendant’s sentence and remand for a new sentencing hearing.

A Davidson County jury convicted Brandon Robert Vandenburg, Defendant, of five counts of aggravated rape, two counts of aggravated sexual battery, and one count of unlawful photography. On appeal, Defendant argues the following: (1) the trial court’s denial of his motion to dismiss the superseding indictment violated his right to due process and protection from double jeopardy and violated Tennessee Rule of Criminal Procedure 8; (2) prosecution on the superseding indictment created a realistic likelihood of vindictive prosecution; (3) the trial court erred in excluding the testimony of Dr. J. Sidney Alexander; (4) the trial court erred by denying Defendant’s request to question potential jurors about recent rape cases in national news and by failing to timely admonish prospective jurors; (5) the trial court erred in denying Defendant’s motion to suppress the June 27, 2013 interrogation and evidence obtained based on that interrogation; (6) the trial court erred in excluding Defendant’s voicemail on Joseph Quinzio’s cell phone; (7) the trial court erred by instructing the jury on the requisite culpability for criminal responsibility and on “presence and companionship” as it relates to criminal responsibility; (8) the State committed prosecutorial misconduct during closing arguments; (9) the evidence was insufficient for a rational juror to have found Defendant guilty beyond a reasonable doubt; (10) Tennessee Code Annotated section 39-13-605 is void for vagueness; (11) the trial court erred in ordering Defendant to serve an excessive sentence; (12) the trial court erred in denying Defendant’s motion to recuse; (13) the trial court erred by excluding evidence of the co-defendants’ prior bad acts; (14) the trial court erred by denying Defendant’s Tennessee Rule of Evidence 412 motion; and (15) the cumulative errors in Defendant’s trial warrant a new trial. After a thorough review of the facts and applicable case law, we affirm the trial court’s judgments in counts one through four and six through eight. Although not raised by either party, we determine that Defendant’s conviction of aggravated rape in count five must be vacated. We modify the conviction in count five to attempted aggravated rape and remand to the trial court for sentencing in count five.

The Defendant, Brian Williams, was indicted for aggravated burglary, a Class C felony; and theft of property valued at $1000 or less, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-14-103, -105, -403. The Defendant pled guilty to the theft charge and was convicted by a jury of the aggravated burglary charge. The trial court later imposed a total effective sentence of four years. On appeal, the Defendant contends that the evidence was insufficient to sustain his conviction for aggravated burglary. Discerning no error, we affirm the judgments of the trial court.

After the dismissal of his federal action, plaintiff filed a state court action alleging a violation of the Public Employee Political Freedom Act. The defendant city thereafter filed a motion to dismiss, arguing that because plaintiff’s action was against a state entity, plaintiff could not rely on the saving statute, Tennessee Code Annotated section 28-1-115. The trial court denied the motion to dismiss but granted an interlocutory appeal. We granted the application for interlocutory appeal and now reverse the decision of the trial court.

This appeal involves a dispute between neighboring landowners over the use of a driveway that crosses the land of a third neighbor. Two of these landowners were previously involved in a separate lawsuit that resulted in an agreed declaratory judgment establishing an easement for one landowner at the location of the driveway. In the case at bar, the trial court found that the prior declaratory judgment is not binding on the neighboring landowners who were not parties to that earlier proceeding. After a two-day bench trial and on-site view of the premises, the trial court found that these neighbors had established an easement implied from prior use, and alternatively, an easement implied by necessity, enabling them to use the driveway as well. The other landowner, who was granted an easement by the earlier agreed order, has appealed, insisting that he has the exclusive right to use the driveway. For the following reasons, we affirm the decision of the chancery court.

Pro se Petitioner, Demarcus L. Gonner, appeals from the Davidson County Criminal Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of the trial court.

We granted this appeal to determine whether, after the death of a defendant during an appeal as of right from a conviction, the Court of Criminal Appeals should follow our holding in Carver v. State, 398 S.W.2d 719 (Tenn. 1966). We conclude that, due to changes in Tennessee’s public policy in the arena of victims’ rights, the doctrine of abatement ab initio must be abandoned. Because there is no evidence before the Court that any interest would benefit from allowing the deceased defendant’s appeal to continue, we hold that, in this case, the deceased defendant’s appeal as of right from his conviction should be dismissed.

I agree that this Court should do away with the doctrine of abatement ab initio. It is an outdated concept. That said, I cannot go along with the Court’s decision to dismiss Mr. Mutory’s appeal. The Court should adopt a procedure for appellate review of a deceased defendant’s conviction and then remand the case so the parties can present evidence based on the new procedure. We have a duty to change the law when it no longer serves the interests of justice—but in doing so, we should not do an injustice to a party. 

Petitioner, Travis Capshaw, appeals the denial of his post-conviction petition. Petitioner argues that he was denied effective assistance of counsel when his trial counsel (1) failed to adequately utilize mental health issues as a mitigating factor in Petitioner’s first degree murder charge and (2) such failure caused trial counsel to erroneously advise Petitioner to plead guilty. Following a review of the briefs of the parties and the record, we affirm the judgment of the post-conviction court.

Husband and wife were divorced in 2004. The parties’ marital dissolution agreement obligated husband to pay wife $950 a month in alimony. Husband failed to make payments for over ten years. In 2015, wife filed a motion for contempt and order for body attachment seeking to recover the alimony arrearages. At trial, husband argued that the equitable doctrines of laches, waiver, and unclean hands barred wife’s claim. The trial court disagreed and awarded wife $114,000 in past due alimony and $1,000 in attorney’s fees. Husband appeals. We affirm.

The petitioner, Darrell Dean Hochhalter, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

The Petitioner, Joshua Terron Johnson, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his 2014 convictions for facilitation of attempted first degree murder, employing a firearm during the commission of a dangerous felony, unlawful possession of a weapon, and aggravated assault and his effective sentence of twenty-six years. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

A trial court terminated a father’s parental rights on the basis of abandonment by failure to visit and substantial noncompliance with a permanency plan. The father appealed, and we affirm the termination.

Two days before the parties’ divorce trial, wife discharged her attorney. Her attorney then moved to withdraw. One day before trial, wife moved pro se for recusal of the trial judge. On the morning of trial, the court denied the wife’s recusal motion and granted her attorney’s motion to withdraw. Wife was not present. After confirming that wife had notice of the date, the court proceeded with the trial. In the final decree, the court granted husband a divorce, classified and divided the marital property, and awarded husband a portion of his attorney’s fees. On appeal, we conclude that the trial court did not err in denying wife’s recusal motion, allowing her attorney to withdraw, or conducting the trial in her absence. But the court did err in awarding husband attorney’s fees as alimony in solido. So we reverse the court’s award of attorney’s fees as alimony in solido. In all other respects, we affirm.

The defendant, Leroy Myers, Jr., was indicted for the aggravated assault of Sandra Custode, an inspector with the Department of Codes and Public Safety (“Metro Codes Department”), by intentionally or knowingly causing her to reasonably fear imminent bodily injury by use or display of a deadly weapon.  See Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii).  Following a bench trial, he was convicted of felony reckless endangerment, which is not a lesser-included offense of aggravated assault as indicted in this case.  Both the trial court and the Court of Criminal Appeals concluded that the defendant, through the actions of counsel, caused an effective amendment of the indictment.  We granted the defendant’s application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to consider whether and under what circumstances the actions of counsel can rise to the level of causing an effective amendment to an indictment absent the clear consent of the defendant.  Upon our review, we hold:  (1) Tennessee Rule of Criminal Procedure 7(b)(1) sets forth the procedure for amending an indictment with a defendant’s consent, and these mandates were not followed in this case; and (2) the actions of counsel amounted, at most, to mere acquiescence rather than an affirmative request for the trial court to consider felony reckless endangerment as a lesser offense.  We reverse the judgment of the trial court and the Court of Criminal Appeals, vacate the judgment of conviction, and dismiss the case.

This appeal has been referred to the 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. The trial court entered a final order that Employee was entitled to benefits. The trial court found that Employer failed to prove willful misconduct under Tenn. Code Ann. § 50-6-110(a)(1) because Employer failed to prove bona fide enforcement of its policy and that Employee had a valid subjective belief for violating said policy. We reverse the trial court’s finding that Employer failed to prove bona fide enforcement of its policy, but we affirm the trial court’s finding that Employee did not willfully violate Employer’s policy. As a result, we affirm the trial court’s judgment in favor of the Employee.

The Department of Children’s Services filed a petition to terminate the parental rights of S.M. (mother) with respect to her child, K.S. The trial court determined that clear and convincing evidence supported multiple grounds for terminating mother’s parental rights. By the same quantum of proof, the court determined that termination is in the best interest of the child. We affirm.

Henry Epps, Petitioner, entered a best interest plea to six counts of sexual exploitation of a minor; the remaining nine counts of sexual exploitation of a minor were dismissed per the negotiated plea agreement. Petitioner received an effective sentence of eight years with release eligibility after service of 100% of the sentence in the Tennessee Department of Correction. Petitioner filed an original and an amended petition for post-conviction relief. After an evidentiary hearing, the post-conviction court denied relief. Petitioner filed a timely notice of appeal. This court reversed and remanded for a new post-conviction hearing and for entry of an order that contained specific findings of fact and conclusions of law relating to all issues raised. At the second post-conviction hearing, the post-conviction court admitted numerous affidavits and reports from Petitioner’s forensic expert and the State’s forensic expert. The post-conviction court then denied relief in an order. On appeal, Petitioner alleges that trial counsel’s performance was deficient because he “failed to consult with or inform [Petitioner] as to whether [Petitioner]’s expert would be used at trial” and “unilaterally discarded [Petitioner]’s defense, allowing him no say as to whether the case would proceed to a trial that would have presumably consisted of a jury hearing testimony from each side’s competing experts.” Petitioner asserts that he would have proceeded to trial absent trial counsel’s deficient performance. He also contends that he did not knowingly and voluntarily plead guilty because he “did not have a meaningful opportunity to confer with trial counsel about alternatives[,]” that “trial counsel . . . unilaterally deprived [Petitioner] of the option to choose trial[,]” and that Petitioner “had no prior experience with criminal proceedings, which would have weighed in favor of a finding that [Petitioner]’s plea was not voluntary, intelligent, or knowing.” After a thorough review of the facts and applicable case law, we affirm.

Cyrus DeVille Wilson, Petitioner, filed a petition for writ of error coram nobis. He argued that two key witnesses for the State, Marquise Harris and Phedrek Davis, had recanted their testimony. Petitioner argued that this recanted testimony was newly-discovered evidence that may have affected the outcome of his trial if it had been admitted. The coram nobis court denied relief. On appeal, Petitioner asserts that the coram nobis court abused its discretion by denying his petition. He argues that the coram nobis court illogically credited Mr. Harris’ and Mr. Davis’ trial testimony as juveniles over their recanted testimony as adults. He also contends that Detective Bill Pridemore’s testimony that Mr. Harris only spoke with police after being assured that he would receive a Crime Stopper reward was newly-discovered evidence that may have had an impact on the outcome of his trial. After a thorough review of the facts and applicable case law, we affirm.

The Petitioner, Timothy Dunn, Sr., appeals from the Robertson County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective in failing to explain to the Petitioner the possible sentence he could receive if convicted at trial. Discerning no error, we affirm the judgment of the post conviction court.

Defendants, Jordan Clayton, Carlos Stokes, and Branden Brookins, were convicted of first degree murder, conspiracy to commit first degree murder, attempt to commit first degree murder, two counts of employing a firearm during the commission of a dangerous felony, and reckless endangerment after a jury found them guilty of the murder of a seven-year-old female child. Defendant Clayton was also convicted of being a felon in possession of a firearm. On appeal, Defendants challenge the trial court’s refusal to sever the cases for trial, the admissibility of a recording of a preliminary hearing and a written statement of a witness with memory loss, and the sufficiency of the evidence. We determine that the trial court did not abuse its discretion by denying a motion to sever or by admitting the preliminary hearing recording and written statement into evidence. Additionally, we determine that the evidence was sufficient to support the convictions. Consequently, we affirm the judgments of the trial court with respect to the convictions for first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, and reckless endangerment. However, we reverse the judgments of the trial court with respect to the conspiracy to commit first degree murder convictions because the trial court improperly merged the conspiracy convictions with the first degree murder convictions. On remand, the trial court should reinstate the judgments for conspiracy to commit first degree murder.

The defendant, Shalonda Renee Pettus, entered an open plea to aggravated child neglect, and the trial court sentenced her to fifteen years’ incarceration in the Tennessee Department of Correction. On appeal, the defendant argues the trial court improperly weighed enhancement factor (1). After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

After Wife filed for divorce from her husband, the parties stipulated to an equitable division of personal property and to the grounds for divorce.  The court conducted a trial to resolve questions surrounding the classification and division of two parcels of improved real property and Wife’s requests for alimony and attorney’s fees.  The trial court determined one parcel of real property was separate property while the other was marital and provided for its division.  The court also awarded Wife alimony in solido and attorney’s fees.  On appeal, Husband challenges the classification and division of the real property and the awards of alimony and attorney’s fees.  We conclude that the court erred in calculating the amounts due from Husband to Wife to accomplish its division of marital property, so we modify the judgment in that respect.  Otherwise, because of a failure to fully comply with Rule 7 of the Rules of the Court of Appeals of Tennessee, Husband’s issues related to the classification, valuation, and division of property are deemed waived.  As to the remaining issues, we affirm the award of lump sum alimony in solido but reverse the award of attorney’s fees as alimony in solido.