APPELLATE COURT OPINIONS

After Appellant’s son violated an order of protection entered against him, Appellant sought relief from the trial court. Although the trial court ruled on some of the issues raised by Appellant, not all of her claims were adjudicated. We therefore dismiss the appeal due to the absence of a final judgment.

Thomas Kowalski, Michael Kowalski, John J. Kowalski, and Margaret Kowalski (“Plaintiffs”) appeal the February 2, 2017 judgment of the Circuit Court for Davidson County (“the Trial Court”) finding and holding, inter alia, that the holographic Last Will and Testament of Francis J. Kowalski (“the Will”) contained a residuary clause such that Francis J. Kowalski (“Deceased”) did not die partially intestate and that the Will granted a conditional life estate in real property located at 2820 Azalea Place (“Azalea Place”) in Nashville to Trevor Walker for as long as Walker operates Thrill Building Music, LLC. We find and hold that the Will does not contain a residuary clause and that Deceased died partially intestate. We further find and hold that the Will granted a fee determinable estate in Azalea Place to Trevor Walker for as long as Walker operates Thrill Building Music, LLC. Given all this, we reverse the Trial Court’s judgment as to whether the Will contained a residuary clause and modify the judgment to reflect that the Will granted a fee determinable estate in Azalea Place to Trevor Walker for as long as Walker operates Thrill Building Music, LLC.

The petitioner, Roy Len Rogers, appeals the denial of post-conviction relief from his 2010 Rhea County Criminal Court jury convictions of first degree premeditated murder, second degree murder, and reckless endangerment, for which he received a sentence of life imprisonment. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

The defendant, Anthony Penny, pled guilty to three counts of aggravated sexual battery. The plea agreement provided for the defendant to be sentenced by the trial court with an agreement his sentences would be served concurrently. Following a sentencing hearing, the trial court imposed a sentence of ten years for each count to be served in confinement. On appeal, the defendant contends the trial court abused its discretion by failing to properly consider the purposes and principles of sentencing, by applying enhancement factor four, and by failing to properly consider certain mitigating factors under the “catch-all” provision of the statute. Following our review, we affirm the judgments of the trial court.

The former director of a culinary program filed a complaint alleging defamation by implication or innuendo and false light invasion of privacy against an individual he claimed was the source of statements made in a newspaper article. The defendant moved to dismiss the complaint on the basis that the statements were not actionable as a matter of law. The trial court dismissed the complaint, and the former director appealed. We affirm the trial court’s judgment dismissing the complaint and remand the issue of attorney’s fees to the trial court.

The Petitioner, Jamie N. Grimes, appeals the Davidson County Criminal Court’s denial of his 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. On appeal, he contends that he received the ineffective assistance of counsel and that the State violated the mandatory joinder rule. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

In 2013, the Petitioner, Julie Bauer, pleaded guilty to attempted murder with an agreed sentence of twenty-nine years of incarceration. Subsequently, the Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends that the post-conviction court erred when it denied her petition because she received the ineffective assistance of counsel. After review, we affirm the post-conviction court’s judgment.

This case involves a claim for procurement of breach of contract. The plaintiff and the defendants operate competing businesses that provide carriage rides for hire in Nashville, Tennessee. The plaintiff sued the defendants for violating Tenn. Code Ann. § 47-50-109 by procuring one of its carriage drivers to breach his noncompete agreement with the plaintiff by driving a carriage for the defendants’ business. The trial court granted summary judgment in favor of the defendants upon the determination that the plaintiff could not prove an essential element of a procurement of breach of contract claim, that the underlying contract was enforceable. Agreeing with the determination that the noncompete agreement was not enforceable, we affirm.

The Defendant, Joey Boswell, pleaded guilty to theft of property valued between $2,500 and $10,000. The trial court sentenced him to serve eight years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court erred when it sentenced him because it improperly enhanced his sentence based on enhancement factor (2), that “The defendant was a leader in the commission of an offense involving two (2) or more criminal actors[.]” T.C.A. § 40-35-114(2) (2014). He also contends that his sentence is excessive. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgment.

James Kevin Woods, the Defendant, was convicted by a Wilson County jury of three counts of sale of 0.5 grams or more of cocaine and received a total effective sentence of forty years as a Range II multiple offender. On direct appeal, he argues that (1) the evidence was insufficient for a rational juror to have found him guilty of sale of cocaine beyond a reasonable doubt; (2) the trial court improperly limited the Defendant’s crossexamination of State witnesses; (3) the professional criminal and extensive criminal history factors in Tennessee Code Annotated section 40-35-115(b) are unconstitutionally vague; and (4) the trial court abused its discretion by ordering a partially consecutive sentence. After a thorough review of the facts and applicable case law, we affirm.

George A. Stanhope, the Petitioner, was convicted of first degree premeditated murder, two counts of first degree felony murder, theft of property valued at $1,000 or more but less than $10,000, and aggravated burglary. The Petitioner received a total effective sentence of life without parole plus ten years. His petition for post-conviction relief was denied by the post-conviction court following a hearing. On appeal, the Petitioner argues that: (1) the State’s voir dire and trial counsel’s concession to second degree murder during closing argument violated the Petitioner’s right to a jury trial and constituted a structural constitutional error; and (2) the Petitioner received ineffective assistance of counsel during voir dire and closing argument. After a thorough review of the facts and applicable case law, we affirm.

I concur in the affirmance of the post-conviction court’s judgment, but write separately to state my conclusion that trial counsels rendered deficient performance by failing to object to the prosecutor’s inappropriate questioning during voir dire. The inappropriate questioning is set forth in the majority opinion and does not need to be repeated here. Obviously, it is impossible to determine some things from the record reflected only in the transcript. For instance, the appellate court is unable to ascertain the volume, inflection, and body language of the prosecutor during this rather unorthodox voir dire. Was the prosecutor waiving arms in order to instruct the entire venire to answer aloud at the same time? When the prosecutor informed the venire that the first two answers (by individual members of the venire) were wrong, what was the emphasis on the word “wrong?” What was utilized to successfully have the entire venire adopt the State’s theory in an apparent rhythmic cadence during voir dire? Appellate judges cannot know the answers to these questions from a cold record. However, the answers are not necessary to conclude that the pertinent line of questioning was outside the bounds of proper voir dire. Pertinent to the legal issues involved in this post-conviction appeal is the fact that the prosecutor’s questions had absolutely nothing to do with whether the potential jurors could perform their duty without regard to bias or prejudice. The questioning was a blatant closing argument with the added ability to interact by conversations with the potential jurors.

The Shelby County Grand Jury charged the Defendant-Appellant, Walter Collins, and two codefendants with first degree felony murder. Following a jury trial, Collins, who was seventeen years old at the time of the offense, was convicted as charged and sentenced to life imprisonment. On appeal, Collins argues: (1) the trial court erred in denying his motion to suppress his statement to police; (2) the trial court erred in admitting certain evidence at trial; (3) the evidence is insufficient to sustain his conviction; and (4) his sentence of life imprisonment violates the prohibition against cruel and unusual punishment in the United States and Tennessee Constitutions, and the trial court abused its discretion in failing to dismiss his indictment on that basis) We affirm the judgment of the trial court.

The Defendant, Jaselyn Grant, was convicted by a Shelby County Criminal Court jury of second degree murder, reckless endangerment, and aggravated assault and was sentenced to an effective twenty-year sentence. On appeal, the Defendant argues: (1) the trial court erred in admitting a photograph of the minor victim; (2) the trial court erred in allowing a witness to testify about statements the minor victim made to her; (3) the evidence is insufficient to sustain her convictions; and (4) the trial court erred in including a “defense of another” instruction in the jury charge. We affirm the judgments of the trial court.

Sherilyne Duty (“Employee”) was employed by East Tennessee Children’s Hospital (“Employer”) as a unit secretary. On March 22, 2006, she was assaulted by a visitor in the waiting area of the pediatric intensive care unit (“PICU”). She sustained an injury to her eye and developed post-traumatic stress disorder (“PTSD”) as a result of the incident. A settlement was reached as to all aspects of her workers’ compensation except the issue of temporary total disability. The settlement was approved by the Department of Labor, and Employee then brought this action seeking temporary disability benefits from July 2007 until November 2015. Employer contended Employee was not entitled to benefits because she was able to work and because she had been terminated for cause. The trial court denied the claim, finding Employee’s medical proof was not credible. Employee appeals, contending the evidence preponderates against the trial court’s decision. The 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. We affirm the judgment.

The Defendant, Dale Merritt, was convicted by a Knox County jury of one count of delivery of less than fifteen grams of a Schedule I controlled substance within 1,000 feet of a park and one count of delivery of less than fifteen grams of a Schedule I controlled substance within 1,000 feet of a child care agency. The trial court merged the convictions and sentenced the Defendant to seventeen years’ imprisonment. On appeal, the Defendant argues that the evidence was insufficient to support his convictions. After review of the record and applicable law, we affirm the judgments of the trial court.

This appeal involves a construction contract dispute among a general contractor, a subcontractor, and the subcontractor’s equipment supplier regarding liability for construction project delays. After a four-day bench trial, the trial court resolved most of the substantive issues among the parties and ultimately determined that the prevailing parties were entitled to awards of attorney’s fees pursuant to various contractual provisions. However, the trial court did not make the awards of attorney’s fees at that time because the parties had not submitted sworn itemizations of services rendered. As a result, the trial court directed the parties to renew their requests for attorney’s fees after any appeals were exhausted. The requests for attorney’s fees were granted in part and denied in part “without prejudice.” Due to the outstanding unresolved issues regarding the attorney’s fee awards, we conclude that the appeal must be dismissed. 

Arturo Cardenas, Jr., filed a Tennessee Rule of Criminal Procedure 36.1 motion claiming that his sentence for a Class A felony drug offense was illegal because he was classified as a Range I standard offender but sentenced to serve his fifteen-year sentence at 100%. Finding that the Movant received the minimum mandatory sentence for a Class A felony drug offense committed in a drug free school zone, the trial court summarily dismissed the motion for failure to state a colorable claim. Discerning no error, we affirm.

The Defendant-Appellant, Tyrone Clay, appeals from the revocation of his community corrections sentence by the Lake County Circuit Court. On appeal, the Defendant argues that the trial court abused its discretion by reinstating a ten-year sentence of full confinement. Upon review, the judgment of the circuit court is affirmed.

The defendant, Steven Swinford, pled guilty to vandalism of property in the amount of $1,000 or more but less than $10,000 (Count 1), vandalism of property in the amount of $10,000 to $60,000 (Count 2), burglary (Count 3), and vandalism of property in the amount of $60,000 to $250,000 (Count 4), for which he received an effective twelve-year sentence. The defendant now appeals the twelve-year sentence imposed by the trial court for his conviction in Count 4, arguing it to be excessive. Separately, the State challenges the trial court’s application of the criminal saving’s statute of Tennessee Code Annotated section 39-11-112 to the defendant’s vandalism conviction of Count 1 through the amended version of the theft statute of Tennessee Code Annotated section 39-14-105. Following our review, we affirm the trial court’s application of the criminal saving’s statute to Count 1 and the trial court’s sentencing in Count 4, but remand the case to the trial court for a hearing on the matter of sentencing as to Counts 1, 2, and 3.

The Petitioner, Charles McClain, appeals the Shelby County Criminal Court’s denial of post-conviction relief from his convictions for first degree premeditated murder and especially aggravated kidnapping, for which he received concurrent sentences of life imprisonment and twenty-five years, respectively. On appeal, the Petitioner contends that he was denied effective assistance of counsel because trial counsel failed to object to the introduction of evidence that had been ruled inadmissible. We affirm the denial of post-conviction relief.

The Defendant-Appellant, Christopher Hank Bohannon, was convicted by a Putnam County jury of sexual exploitation of a minor for possession of over 100 images of a minor engaged in sexual activity (count one) and aggravated sexual exploitation of a minor based on the distribution, exchange, or possession with intent to distribute over 25 images of a minor engaged in sexual activity (count two), for which he received an effective sentence of eight years. Tenn. Code Ann. §§ 39-17-1003(a)(1), -1004(a)(1)(A). On appeal, the Defendant argues that: (1) the trial court improperly re-heard the Defendant’s motion to suppress evidence; (2) the Defendant’s statements to police during the execution of a search warrant at his residence should have been suppressed; (3) the evidence was insufficient to support his aggravated sexual exploitation conviction; and (4) the State made improper and prejudicial statements during its rebuttal closing argument.1 Upon review, we affirm the judgments of the trial court.

Andrew De Bose-Maben (“the Defendant”) was convicted by a Shelby County jury of aggravated robbery, for which the trial court imposed a sentence of nine years to serve in the Department of Correction. On appeal, the Defendant contends that the trial court abused its discretion by allowing the State to question the victim about his interaction with the Defendant during a recess at trial. Upon review, we affirm the judgment of the trial court.

After a bench trial, the trial court issued a written order finding the Defendant, Leroy Myers, Jr., not guilty of the charged offense, aggravated assault, but guilty of reckless endangerment. The Defendant appealed, asserting that reckless endangerment is not a lesser-included offense of aggravated assault under the facts of this case and that there was not an implicit amendment to the indictment to include reckless endangerment. We affirmed the trial court. State v. Leroy Myers, Jr., No. M2015-01855-CCA-R3-CD, 2016 WL 6560014 (Tenn. Crim. App., at Nashville, November 4, 2016). The Defendant filed an application for permission to appeal with the Tennessee Supreme Court pursuant to Rule 11(a) of the Tennessee Rules of Appellate Procedure. On September 22, 2017, the Tennessee Supreme Court granted the Defendant’s application for the purpose of remanding the case to this Court to supplement the record. On remand, we again affirm the trial court’s judgment.

“The Movant,” Cameron Buchanan, filed a “Motion to Vacate, Correct Clerical Error, and/or, otherwise Set Aside an Illegal Sentence” (“the motion”). The gist of the Movant’s claim is that his fifteen-year sentence for especially aggravated kidnapping in case 98-09641 was ordered to be served concurrently, not consecutively, with his fifteenyear sentence for especially aggravated kidnapping in case 98-09629, and therefore, his effective sentence was twenty-five years, not thirty years. The trial court treated the motion as a Tennessee Rule of Criminal Procedure 36 motion to correct clerical mistakes in the judgments and summarily dismissed the motion finding “that there [we]re no clerical errors as alleged by [the Movant].” We determine that there are clerical errors in the judgments for cases 98-09635 through 98-09639 and case 98-09641. The errors in the judgments also correspond with the language of the “Negotiated Plea Agreement” forms for cases 98-09635 through 98-09639 and case 98-09641. Additionally, the trial court did not address the Movant’s Tennessee Rule of Criminal Procedure 36.1 claim that his sentence was illegal. The judgment summarily dismissing the motion is reversed, and the case remanded for correction of the clerical errors, which may require appointment of counsel and a hearing, and for determination as to whether or not the motion stated a colorable claim under Rule 36.1.