APPELLATE COURT OPINIONS

The Petitioner, Willie Hampton, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his 2010 conviction for theft of property valued at $10,000 or more but less than $60,000 and his Range III, fifteen-year sentence. The Petitioner contends that the trial court erred by denying him relief because he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

The defendant, Harley Upchurch, appeals the trial court’s revocation of his probation and reinstatement of his sentence of three years and six months in the Department of Correction. On appeal, he argues that the trial court erred in revoking his probation. Following our review, we affirm the judgment of the trial court.
 

The Juvenile Court for Hamilton County (“the Juvenile Court”) terminated the parental rights of Johonauan J. R. (“Father”) to the minor child Zoey F. (“the Child”) on the grounds of willful failure to visit, wanton disregard for the welfare of the child, and substantial noncompliance with the statement of responsibilities in the permanency plan. Father appeals the termination of his parental rights. As there is uncertainty regarding the time frame relied upon by the Juvenile Court for the ground of willful failure to visit, we modify the Juvenile Court’s judgment to exclude the ground of willful failure to visit. Otherwise, we find and hold that the evidence does not preponderate against the Juvenile Court’s finding by clear and convincing evidence that grounds existed to terminate Father’s parental rights and that the termination of Father’s parental rights was in the Child’s best interest. We affirm the termination of Father’s parental rights to the Child.

A Gibson County jury found the Defendant, Susan M. Barnett, guilty of one count of aggravated assault, two counts of assault, and one count of unauthorized use of an automobile. The trial court ordered the Defendant to serve a six-year sentence for the aggravated assault conviction and concurrent sentences of eleven months and twenty-nine days for the remaining convictions. On appeal, the Defendant claims that the evidence is insufficient to sustain her conviction for aggravated assault by seriously bodily injury because the victim did not suffer “seriously bodily injury.” After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

The Petitioner, Charles Graham, aka Charles Stevenson, appeals as of right from the Hardeman County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. In his petition, the Petitioner argued that his judgment of conviction for tampering with evidence was void because (1) the indictment was defective for failing to include the essential elements of the offense and (2) the facts alleged in the indictment demonstrate that he “mere[ly] abandon[ed]” the marijuana not that he tampered with the evidence. On appeal, he contends that there was a material variance between the indictment on the tampering with evidence count and the proof offered at trial. Following our review, we affirm the order of the habeas corpus court.

Plaintiff filed a healthcare liability action in the general sessions court. At a docket call, defendant Methodist appeared and tendered a confession for the full $25,000 jurisdictional limit of the general sessions court. Plaintiff immediately sought to non-suit her claims against Methodist. The general sessions court denied Methodist’s tendered confession and it entered an order non-suiting Methodist. Plaintiff then refiled her suit against Methodist in the circuit court and Methodist moved for summary judgment based upon its tendered confession of judgment in the general sessions court. The circuit court granted summary judgment in favor of Methodist. We reverse the circuit court’s grant of summary judgment and we remand for further proceedings.

A Montgomery County jury convicted the Defendant, Mitchell S. Pozezinski, for one count of violating the terms of his community supervision for life, and the trial court sentenced him to ten days in jail plus six months of state probation. On appeal, the Defendant contends that the evidence presented is insufficient to support a finding that he knowingly violated the terms of his community supervision for life. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgment.
 

An Obion County jury found the Defendant, Jerry Sherrill, II, guilty of theft of property valued between $1,000 and $10,000. The trial court sentenced the Defendant to eight years as a Range II, persistent offender. The Defendant appeals, asserting that: (1) the trial court improperly ruled that his prior theft convictions could be used for impeachment purposes should he testify at trial; (2) the evidence is insufficient to sustain his conviction; (3) the trial court improperly required the jury to continue deliberations; and (4) the trial court improperly instructed the jury concerning possession of recently stolen property. After a thorough review of the record and the applicable law, we affirm the trial court’s judgment.

This is a petition for termination of parental rights and adoption. The parents of the child at issue divorced in 2007. The father moved to Colorado, and the mother was designated the child’s primary residential parent. The father was given parenting time in Colorado during the child’s spring, winter, and summer vacations, as well as parenting time in Tennessee at any time, with reasonable notice. The father exercised his parenting time only for a single 30-day period each summer in 2008, 2009, and 2010. After the child’s summer 2010 visit, the father scheduled no parenting time. In July 2011, the mother and her husband filed the instant petition to terminate the father’s parental rights and for the mother’s husband to adopt the daughter. The petition alleged abandonment by willful failure to visit during the four-month period preceding the filing of the petition. After a trial, the trial court denied the petition. It held that the petitioners did not establish grounds for termination and that the child’s best interest would not be served by terminating the father’s parental rights. The petitioners now appeal. After careful review of the record, we hold that clear and convincing evidence supports the termination of the father’s parental rights, and so reverse the trial court’s denial of the petition.

A Davidson County jury convicted the Defendant, Mark Anthony Anderson, of one count of arson. The trial court sentenced the Defendant to seven years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress his statements to police. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.
 

The trial court vacated an arbitration award in favor of Respondent/Appellant on the ground of evident partiality on the part of two arbitrators and remanded the matter to the arbitration board to be re-arbitrated by a different panel. We reverse and remand to the trial court for confirmation of the arbitration award.

The Defendant, Kevin Holst, was convicted by a Shelby County Criminal Court jury of aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2010). The trial court sentenced him as a Range III, persistent offender to twelve years’ confinement. On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2) the court erred by refusing to send the exhibits to the jury room during deliberations. We affirm the judgment of the trial court.

Petitioner, Derron Guy, pled guilty to carjacking, employment of a firearm during the commission of a dangerous felony, and aggravated robbery in case number 10-00740; carjacking and employment of a firearm during a dangerous felony in case number 09-06692; and criminal attempt of carjacking and possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony in case number 10-00741. Petitioner filed a petition for habeas corpus relief. The dismissal of the petition was affirmed on appeal. See Derron S. Guy v. Cherry Lindamood, Warden, No. W2012-00759-CCA-R3-HC, 2012 WL 5943396, at *1 (Tenn. Crim. App., at Jackson, Nov. 28, 2012). Petitioner sought leave in a different court to amend the first petition and raised additional grounds for habeas corpus relief. The habeas corpus court summarily dismissed the petition. Petitioner appeals. After a review, we determine that Petitioner is not entitled to habeas corpus relief as he has not proven on the face of the judgment or the record that the convicting court was without jurisdiction to convict or sentence Petitioner or that Petitioner is still imprisoned despite the expiration of his sentence. Accordingly, we affirm the judgment of the habeas corpus court.
 

In this premises liability action, Plaintiff/Appellant was allegedly injured when he slipped and fell on the subject property. The trial court granted a directed verdict to the Appellees, who are the property owners/occupiers. The basis for the directed verdict was that Appellant failed to submit evidence from which a reasonable juror could conclude either that the Appellees knew or should have known of a dangerous condition on the property, or that Appellees caused or created a dangerous condition on the property. Discerning no error, we affirm.

Mother appeals the termination of her parental rights as to her two children. Father’s rights were also terminated, but he does not appeal. The court found the Department of Children’s Services established three grounds fortermination of mother’s parental rights:1) severe child abuse pursuant to Tennessee Code Annotated § 36-1-113(g)(4); 2) mental incompetence pursuant to Tennessee Code Annotated § 36-1-113(g)(8)(B);and 3) persistence of conditions pursuant to Tennessee Code Annotated § 36-1-113(g)(3). In a previous dependency and neglect proceeding, the Lincoln County Juvenile Court found that Mother committed severe child abuse by failing to protect her minor daughter from sexual abuse by a neighbor. That judgment was not appealed; as a consequence, the severe abuse findings are res judicata. Pursuant to Tennessee Code Annotated § 36-1-113(g)(4), a court may terminate parental rights when the parent was found to have committed severe child abuse under any prior order of a court. The court also found that the Department had proven two additional grounds, mental incompetence and persistent conditions. The juvenile court also found that termination of both parents’ rights was in the children’s best interest. We therefore affirm.

In this procedurally complex case, a Davidson County jury convicted the Defendant, Arthur Ray Turner, of especially aggravated kidnapping, aggravated robbery, four counts of aggravated rape, and attempted aggravated rape. The trial court sentenced the Defendant to a total effective sentence of seventy years in confinement. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress his statements to police; (2) the trial court erred when it denied his motion to dismiss based upon the State’s destruction of evidence; (3) the trial court erred when it ruled on the admissibility of DNA evidence; (4) the evidence is insufficient to sustain his conviction for two counts of aggravated rape because the State did not prove that he was armed with a weapon or anything the victim reasonably believed was a weapon; (5) the trial court erred when it allowed separate convictions for aggravated rape in Counts 3 and 4 and attempted aggravated rape in Count 5 because separate convictions violate his protections against double jeopardy; (6) the trial court erred when it ordered his sentences to run consecutively and when it ordered him to serve his sentence for especially aggravated kidnapping at 100 percent. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments in all respects save one. The trial court’s judgment in Count 1, especially aggravated kidnapping, should be modified to reflect a release eligibility date of 30 percent.
 

Because the order appealed is not a final judgment, this Court lacks jurisdiction to hear this matter. Thus, the appeal is dismissed.

This post-divorce case involves the application of Supreme Court Rule 40A, which governs the appointment, role and duties of a guardian ad litem. The guardian ad litem in this case, Janice Russell, was appointed on November 7, 2008. She filed a motion requesting the court to hold her ward’s father, appellant Scott D. Paterson (“father”), in contempt. After father filed a response pointing out that Rule 40A, § 9(a)(4) did not authorize a guardian ad litem to file a contempt motion, the trial court, in response, entered an order on March 17, 2010, appointing Ms. Russell “attorney ad litem.” Subsequently, Rule 40A, § 9 was amended to allow a guardian ad litem to “take any action that may be taken by an attorney representing a party pursuant to the Rules of Civil Procedure.” After the amendment took effect, Russell referred to herself in her filings as “guardian ad litem.” The trial court followed suit in its final order. On January 20, 2011, the trial court entered an order that disposed of all matters relating to custody of the child. More than a year later, father filed a petition to modify his child support. On May 16, 2013, the guardian ad litem filed a “motion for emergency hearing and motion for contempt.” On May 20, 2013, the trial court conducted a hearing, after which it entered an order holding father in contempt on four counts, sentencing him to 40 days in jail, suspending all of his parenting time, and reducing contact with his daughter to one telephone call per week. Father appeals. We hold that, pursuant to Supreme Court Rule 40A, § 5, the guardian ad litem’s appointment terminated when, with the passage of time, the court’s order disposing of the custody matters became final. Hence, the guardian ad litem had no authority to file her motion for “emergency hearing” and for contempt. We reverse the judgment of the trial court.

This is a dependency and neglect case. R.P. (“Mother”) appeals the trial court’s finding that he severely abused her minor daughter, K.P. The Department of Children’s Services petitioned the juvenile court to declare K.P. and her sister, K.J. (collectively, “the Children”) dependent and neglected. Following a hearing, the juvenile court found 1 that the Children were dependent and neglected in the care of Mother and her then-boyfriend, B.J.2 The juvenile court further found that B.J. committed severe abuse against K.P.,3 but that Mother did not. DCS appealed to the trial court. Following an adjudicatory hearing, the trial court found, by clear and convincing evidence, (1) that the Children were dependent and neglected and (2) that Mother committed severe child abuse against K.P. in that she failed to protect K.P. from abuse at the hands of B.J. Mother appeals. We affirm.

In this post-divorce case, the trial court entered an order on March 12, 2012, incorporating a permanent parenting plan. The order states that “[t]his matter shall be reviewed in one year.” On April 18, 2013, the court entered an order stating that “the Court, sua sponte, finds that the Permanent Parenting Plan attached to the Order of [March 12, 2012], should in fact be a Temporary Parenting Plan and by this Order [the court] corrects such.” We hold that under Tenn. Code Ann. § 36-6-404(a) (2010), which provides that “[a]ny final decree or decree of modification in an action for absolute divorce . . . involving a minor child shall incorporate a permanent parenting plan,” the parenting plan incorporated by the trial court’s March 12, 2012 order was a permanent plan. Because of the mandatory statutory language, the trial court was without authority to subsequently “convert” it to a temporary parenting plan. Consequently, we reverse the judgment of the trial court.

A.L. (“Mother”) appeals the termination of her rights with respect to her five minor children (collectively, when referring to all five, “the Children”). The Department of Children’s Services (“DCS”) placed the Children in temporary state custody based on the youngest child’s exposure to methamphetamine in utero. The court found that Mother’s conduct constituted severe abuse against that child; consequently, the court relieved DCS of its obligation to make reasonable efforts toward reunification of the Children with Mother. Some 17 months after the Children were placed in foster care, DCS initiated these termination proceedings. After a bench trial, the court terminated Mother’s rights based on its finding of multiple grounds for termination and its further finding that termination is in the best interest of the Children. Both findings were said by the trial 1 court to be made by clear and convincing evidence. Mother appeals. We affirm.

A Cheatham County jury convicted the Defendant, Aaron D. Ostine, of first degree premeditated murder, first degree felony murder, and aggravated robbery. The trial court merged the two murder convictions and imposed a life sentence. The court then sentenced the Defendant to 00twelve years for the aggravated robbery conviction. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions; (2) the trial court erred when it denied a motion to suppress his statements to police; and (3) the State engaged in prosecutorial misconduct during closing argument. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.
 

This appeal involves the termination of a father’s parental rights on numerous grounds. We affirm the trial court’s finding that grounds for termination exist, due to incarceration under a ten year sentence, severe child abuse, persistent conditions, and abandonment by an incarcerated parent, and we affirm the trial court’s finding that termination is in the child’s best interest. We vacate the trial court’s finding of willful failure to pay child support but otherwise affirm the order as modified.

Griffith Services Drilling, LLC (“Griffith”) and Lexington Insurance Company, Griffith’s insurance company, sued Arrow Gas & Oil, Inc. (“Arrow”) for property damage caused by a fire that occurred while Arrow was refueling a drilling rig operated by Griffith in Anderson County, Tennessee (“the Drilling Site”). Arrow answered the complaint and counterclaimed for breach of contract based upon Griffith’s refusal to pay for the fuel delivered by Arrow on the day of the fire. Arrow also filed a motion to dismiss for spoliation, which the Circuit Court for Anderson County (“the Trial Court”) granted dismissing Griffith’s claims against Arrow. Arrow then filed a motion for summary judgment on its counterclaim, which the Trial Court granted in part. Griffith appeals to this Court raising issues regarding the dismissal of their claims and the grant of summary judgment to Arrow. We find and hold that both Griffith and Arrow were guilty of spoliation, and, therefore, that dismissal of Griffith’s claims was not an appropriate sanction. We vacate the dismissal of Griffith’s claims against Arrow and reinstate them. Because the Trial Court granted Arrow summary judgment based upon its decision on the issue of spoliation, and we have vacated the Trial Court’s decision on the issue of spoliation, we also vacate the grant of summary judgment to Arrow.

Randall Scott McCoy (“the Defendant”) pleaded guilty to one count of sexual exploitation of a minor, a Class B felony, and was sentenced to eight years’ incarceration. The Defendant reserved a certified question of law concerning the trial court’s denial of his motion to suppress evidence. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgment.