APPELLATE COURT OPINIONS

This appeal arises from a modification of child support. Gregory Brannick (“Father”) and Anna Karpovich (“Mother”) divorced in 2003. Father was ordered to pay $560 per month in child support for the parties’ minor son (“the Child”). In 2016, the State of Tennessee ex rel. Mother filed a petition in the Juvenile Court for Shelby County (“the Juvenile Court”) to establish arrears and/or to modify child support. Following a hearing, the Juvenile Court entered an order increasing Father’s child support obligation to $1,464.17 per month. Father appeals, arguing among other things that the Juvenile Court failed to consider his actual income for purposes of modifying his child support obligation. Discerning no reversible error, we affirm.

This appeal arises from the dismissal of a petition for a common law writ of certiorari in which the petitioner sought to challenge a decision of the Livingston Board of Zoning Appeals. The trial court dismissed the petition pursuant to a Tenn. R. Civ. P. 12.02(1) motion for lack of subject matter jurisdiction because the petition failed to name the Livingston Board of Zoning Appeals, whose decision was at issue, as a defendant as required by Tenn. Code Ann. § 27-9-104. This appeal followed. We affirm.

We granted permission to appeal in this case to assess the sufficiency of the evidence for a conviction for attempted especially aggravated sexual exploitation of a minor, i.e., attempted production of child pornography, in the wake of our decision in State v. Whited, 506 S.W.3d 416 (Tenn. 2016). The defendant hid a video camera in the minor victim’s bedroom, aimed to record the area of her bedroom where she normally changed clothes. Soon after the victim returned to her bedroom, fully clothed, she noticed the camera and turned it off. Consequently, the resulting video did not depict the minor in any degree of nudity. The defendant was charged with attempted especially aggravated sexual exploitation of a minor and was convicted of that offense after a bench trial. The Court of Criminal Appeals affirmed, and we granted permission to appeal. On appeal, the defendant argues that the evidence was insufficient to support a finding that he attempted to produce material that would include a depiction of a minor in a “lascivious exhibition” of her private body areas, as required under Tennessee’s child sexual exploitation statutes and construed in Whited. We agree. The evidence presented at trial shows at most that the defendant intended to produce material that would include images of the minor victim engaged in everyday activities ordinarily performed in the nude, which were deemed insufficient in Whited to constitute a “lascivious exhibition” under Tennessee’s child sexual exploitation statutes. Consequently, we hold that the evidence, even when viewed in a light most favorable to the verdict, is insufficient to support an inference that the defendant intended to record, and believed he would record, the minor victim engaged in a lascivious exhibition of her private body areas. Accordingly, we reverse the defendant’s conviction.

I maintain that the Court of Criminal Appeals properly affirmed the defendant’s conviction for attempted especially aggravated sexual exploitation of a minor.

The Defendant, Samuel Enrique Mendez, was indicted on two counts of aggravated sexual battery, a Class B felony; and five counts of rape of a child, a Class A felony. See Tenn. Code Ann. §§ 39-13-504, -522. Prior to trial, the State dismissed one of the aggravated sexual battery counts and three of the rape of a child counts. At the close of the State’s proof, the State requested that the remaining aggravated sexual battery count also be dismissed. The jury then convicted the Defendant of the remaining two counts of rape of a child, and the trial court imposed a total effective sentence of fifty-four years. On appeal, the Defendant contends that the trial court erred in allowing a defense character witness to be cross-examined about a specific instance of the Defendant’s conduct. Following our review, we conclude that the trial court did not comply with the requirements of Tennessee Rule of Evidence 405 in allowing the witness to be cross examined about the specific instance of the Defendant’s conduct, and that the error was not harmless. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

This appeal involves an Arkansas plaintiff who was involved in an auto accident on a bridge between Arkansas and Tennessee with another vehicle operated by an employee of the State of Arkansas. The Arkansas plaintiff and her husband filed this personal injury suit in the circuit court of Shelby County, Tennessee, naming as defendants the State of Arkansas, the Arkansas State Highway and Transportation Department, and the Arkansas state employee who was operating the other vehicle. The defendants moved to dismiss on numerous grounds, including sovereign immunity and the discretionary principle of comity. The Tennessee Attorney General filed an amicus brief on behalf of the Tennessee Department of Transportation asking the trial court to extend comity to the Arkansas defendants and dismiss the action against them. After two hearings, the trial court granted the defendants’ motion to dismiss on the basis of comity. Discerning no error, we affirm the decision of the circuit court.

This litigation finds its genesis in a water pipeline break that caused damage to residential property. At the time of the break, Joseph and Martha Mosakowski were the title owners of the damaged property. Matthew Tolliver, who was purchasing the property under a contract for deed, resided in the home. Mr. Tolliver filed a complaint against Tellico Village Property Owners Association, Inc. (defendant) alleging negligence and breach of contract. The Mosakowskis were later joined to the suit as co-plaintiffs. Pursuant to a court order, the Mosakowskis filed their own complaint, which contained similar factual allegations and asserted the same causes of action as alleged in Mr. Tolliver’s complaint. Defendant filed a motion to dismiss the Mosakowskis’ negligence claim. The defendant also filed a motion for summary judgment on all claims asserted by Mr. Tolliver and the Mosakowskis. Mr. Tolliver consented to the entry of an agreed order granting summary judgment to the defendant as to all of his claims. The Mosakowskis, however, contested defendant’s motions. Ultimately, the trial court granted defendant’s motion to dismiss the Mosakowskis’ negligence claim because the court determined that the statute of limitations had expired. In a separate order, the court granted the defendant summary judgment on the Mosakowskis’ breach of contract claim because the court determined that there was no consideration for the alleged contract. The court denied summary judgment as to the Mosakowskis’ negligence claim because the court’s order dismissing that claim rendered the issue moot. The Mosakowskis appeal. We affirm the trial court’s dismissal of the negligence claim. Although the court erred by dismissing the negligence claim pursuant to Tenn. R. Civ. P. 12.02(6), we find that ruling to be harmless because summary judgment was proper under Tenn. R. Civ. P. 56. Finally, we reverse the trial court’s grant of summary judgment on the breach of contract claim and remand for further proceedings.

The Davidson County Criminal Court denied the Petitioner’s petition for post-conviction relief from his conviction of selling twenty-six grams or more of cocaine within one thousand feet of a school and resulting twenty-five-year sentence. The Petitioner appealed to this court, arguing that he received the ineffective assistance of counsel and that the State violated the mandatory joinder rule, and we affirmed the judgment of the post-conviction court. However, in a footnote to our opinion, we noted errors in the post-conviction court’s order that did not accurately reflect what occurred at the post-conviction evidentiary hearing. The Tennessee Supreme Court granted the Petitioner’s application for permission to appeal, vacated the judgment of this court, and remanded the case to the post-conviction court for entry of a corrected order denying the petition for post-conviction relief. The amended order is now before us. Upon reconsideration of the record and the parties’ briefs, we again affirm the judgment of the post-conviction court.

The Petitioner, Joletta Hinson-Bull, pleaded guilty to theft of property valued at more than $1,000, criminal impersonation, and driving on a revoked license. She agreed to be sentenced as a Range III offender to an effective sentence of ten years, to be served consecutively to her sentence from a conviction in a different county. The Petitioner filed a petition for post-conviction relief alleging that her counsel was ineffective and that her guilty plea was not knowingly and voluntarily entered. The post-conviction court denied the petition. On appeal, the Petitioner contends that the post-conviction court erred when it denied her post-conviction relief. After review, we affirm the postconviction court’s judgment.

The Defendant-Appellant, Nicholas Wyatt Barish, was convicted by a Knox County jury of two counts of first degree felony murder and one count of second degree murder, see Tenn. Code Ann. §§ 39-13-202, -210, for which he received an effective sentence of life imprisonment. In this appeal as of right, the Defendant argues that the evidence was insufficient to support his convictions of first degree felony murder because he did not have the requisite mental state to commit the predicate crimes of theft, burglary, and robbery. Upon review, we affirm the judgments of the trial court.

The Petitioner, Christopher Lee Blunkall, appeals from the denial of his petition for post-conviction relief, wherein he challenged his jury conviction for rape of a child. On appeal, the Petitioner alleges that he received ineffective assistance because trial counsel (1) failed to file suppression motions concerning multiple items of evidence, including the text message communications between the Petitioner and the victim, certain phone records, the Petitioner’s banking records and the automated teller machine (“ATM”) surveillance video showing the Petitioner’s withdrawing money, the traffic stop, and the Petitioner’s statement to the police; (2) failed to rebut the medical testimony from the State’s expert; and (3) failed to pursue a preliminary hearing, adequately investigate the victim’s background, or vigorously cross examine and impeach the victim. The Petitioner further contends that the State committed prosecutorial misconduct by failing to provide the defense with favorable evidence—the victim’s juvenile record—and by certain statements made during closing arguments. After a thorough review of the record, we affirm the judgment of the post-conviction court.

The Petitioner, Marlo Davis, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his second degree murder and reckless homicide convictions. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

This is a health care liability action in which the plaintiff asserted claims of professional negligence, negligent supervision, and medical battery against a physician’s assistant, a dermatologist, and their employer. The trial court granted the defendants’ motion for summary judgment under Tennessee Rule of Civil Procedure 56.02, motion for dismissal under Tennessee Rule of Civil Procedure 37.02, and motion for sanctions under Tennessee Code Annotated section 29-26-122(d). We agree with the trial court’s determination that the plaintiff failed to obtain a competent expert witness to testify on the applicable standard of care as required by Tennessee Code Annotated section 29-26-115 and violated Tennessee Code Annotated section 29-26-122 by filing a non-compliant certificate of good faith. Accordingly, we affirm the trial court’s dismissal of plaintiff’s action and award of sanctions.

Jerald Jefferson, Petitioner, was convicted of aggravated rape and sentenced to twenty-five years’ incarceration and his conviction was affirmed on direct appeal. His petition for post-conviction relief was denied by the post-conviction court after a hearing. On appeal, Petitioner claims that he was denied effective assistance of counsel because trial counsel failed to file a motion pursuant to Tennessee Rule of Evidence 412 to allow cross-examination of the victim about an alleged consensual sexual encounter between the victim and Petitioner. After a thorough review of the facts and applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Sadegh Babanzadeh, was convicted of one count each of tampering with evidence and filing a false report. The trial court sentenced him to a five-year sentence for tampering with evidence and a three-year sentence for filing a false report, to run concurrently, with a year to be served in the Department of Correction, and the remainder of the sentences to be served on probation. The Defendant argues on appeal that the evidence is insufficient to sustain his convictions. After thorough review, we affirm the judgments of the trial court.

Defendant, Delmontae Godwin, was convicted of aggravated assault and aggravated robbery and sentenced to an effective sentence of twelve years, to be served consecutively to a sentence from another conviction. Defendant appeals his sentence, arguing that the trial court erred by sentencing him to the maximum sentence for each conviction. Because the trial court did not abuse its discretion, we affirm the judgments of the trial court.

Following a bench trial, the Defendant, Howard P. Fisher, was convicted of aggravated assault and criminal trespass, for which he received a ten-year sentence and a $50 fine, respectively. In his direct appeal, the Defendant argued (1) that the evidence was insufficient to support his conviction of aggravated assault; (2) that the trial court erred in granting the State a continuance for sentencing; and (3) that the trial court erred in denying his ineffective assistance of counsel claim. Upon review, this court affirmed the judgments of the trial court but declined to review the claim of ineffective assistance of counsel finding that the Defendant “raised a general claim of ineffective assistance of counsel in his motion for a new trial. His motion did not include any issues pertaining to trial counsel’s performance or facts in support of his claim.” State v. Howard P. Fisher, No. M2017-00975-CCA-R3-CD, 2018 WL 3060369, at *1, *5 (Tenn. Crim. App. June 20, 2018), perm. app. granted and case remanded, No. M2017-00975-SC-R11-CD (Tenn. Sept. 13, 2018) (order). On September 13, 2018, the Tennessee Supreme Court granted the Defendant’s application for permission to appeal and remanded the case to this court to discuss the merits of the Defendant’s claim of ineffective assistance of counsel. State v. Howard P. Fisher, No. M2017-00975-SC-R11-CD (Tenn. Sept. 13, 2018) (order). Upon further review, we affirm.

This appeal involves a suspended attorney’s attempt to file a petition pro se in a case in which he was not a party. The trial court denied the petition sua sponte, concluding that the suspended attorney was not a party to the original action, he did not file a petition to intervene, and he was using the pro se petition as a subterfuge to circumvent his suspension from the practice of law. The suspended attorney appeals. We affirm.

The defendant, Aaron Hatfield, appeals the denial of his bid for judicial diversion of the three-year sentence imposed for his Knox County Criminal Court guilty-pleaded conviction of aggravated assault. Following our review, we conclude that the defendant is entitled to judicial diversion. We remand the case for entry of an order placing the defendant on judicial diversion under the same terms and conditions of the previously imposed sentence of probation.

I respectfully disagree with the conclusion reached by the majority in this case. For the reasons that follow, I would affirm the trial court’s judgment denying judicial diversion. The trial court considered and weighed on the record the factors governing judicial diversion for a qualified defendant set forth in State v. Parker, 932 S.W.2d 945 (Tenn. Crim. App. 1996) and State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn. Crim. App. 1998). Therefore, we review the trial court’s decision under an “abuse of discretion standard accompanied by a presumption of reasonableness.” State v. King, 432 S.W.3d 316, 329 (Tenn. 2014). Although the trial court could have been more artful in its oral findings, the trial court’s findings, as set forth in the majority opinion, are in my opinion sufficient to determine that the trial court did not abuse its discretion in denying judicial diversion and that the trial court’s decision was reasonable.

Austin Daugherty petitioned the trial court for an order of protection against his former wife, Sally Daugherty, on behalf of their minor child, Chloe. Mr. Daugherty alleged that Ms. Daugherty engaged in domestic violence. The order granting the petition and the amended order were entered against Ms. Daugherty by apparent default. She appeals arguing that she did not receive notice of the petition and any subsequent proceedings. We vacate the order of protection and remand for further proceedings.

This is a post-divorce action involving the interpretation of certain provisions of the parties’ marital dissolution agreement (“MDA”) and allegations of contempt of court for failure to comply with the MDA. The Blount County General Sessions Court (“trial court”) conducted a bench trial, took the matter under advisement, and directed the parties to each prepare proposed findings of fact and conclusions of law. The trial court subsequently adopted verbatim the wife’s proposed findings and conclusions with what we determine to be insufficient explanation regarding the trial court’s decision-making process. The husband has appealed. Because we are unable to ascertain whether the trial court’s final order is an independent judgment of the court, we vacate the order and remand for sufficient findings of facts and conclusions of law that reflect the trial court’s independent analysis and judgment. 

In this legal malpractice lawsuit, the trial court granted summary judgment for the defendant after the plaintiffs’ counsel failed to respond to the defendant’s motion and appear at the hearing. Thereafter, the plaintiffs filed a motion to set aside the judgment, arguing their attorney’s failure to respond was due to excusable neglect. The trial court denied the motion, and this appeal followed. We affirm the trial court’s denial of the plaintiffs’ motion to set aside because the plaintiffs failed to demonstrate that they had a meritorious defense.

The Petitioner, Martin Hughes, appeals the Trousdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. In 2014, the Petitioner entered a guilty plea to several offenses and received an effective five-year sentence. He was later convicted of two new offenses and received concurrent sentences of ten and fifteen years, served consecutively to his five-year sentence. On appeal, the Petitioner alleges that his five-year sentence has expired and that he is being held illegally because the Tennessee Department of Correction (TDOC) incorrectly calculated this sentence and erred in denying him a parole hearing. We affirm the summary dismissal of the petition.

The Petitioner, Jerome Maurice Teats, filed for post-conviction relief from his conviction of one count of aggravated robbery and four convictions of especially aggravated kidnapping. The Petitioner alleged that based upon the advice of trial counsel, he rejected plea offers and decided to go to trial. The Petitioner further alleged that appellate counsel was ineffective by failing to include a suppression issue in the application for permission to appeal to the supreme court. The post-conviction court found that the Petitioner failed to prove that either trial counsel or appellate counsel were ineffective. On appeal, the Petitioner challenges this ruling. Upon review, we affirm the judgment of the post-conviction court.