APPELLATE COURT OPINIONS

Following a jury trial, the defendant, Kedrick Carwell, was convicted of carjacking, a Class B felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. The trial court sentenced him as a Range II, multiple offender to fifteen years for the carjacking conviction and as a violent offender to ten years for the firearm conviction, to be served consecutively. On appeal, he argues that the evidence is insufficient to support his convictions. Based upon our review, we affirm the judgments of the trial court.

The petitioner, Brent A. Blye, appeals the denial of his petition for post-conviction relief. In this case, the petitioner was convicted by a jury of possession with intent to sell 26 grams or more of cocaine, a Class C felony, possession of a Schedule III controlled substance, a Class A misdemeanor, and possession of less that .05 ounces of marijuana, a Class A misdemeanor. Following the verdict, the parties reached an agreement on sentencing whereby the petitioner would serve twelve years as a Range II offender on the cocaine conviction and eleven months and twenty-nine days on each of the misdemeanors. As part of the same sentencing agreement, the petitioner entered guilty pleas and was sentenced in three unrelated cases at the same time. On appeal, he contends that the post-conviction court erred in denying him relief because he was denied his right to the effective assistance of counsel at trial. Specifically, he contends that trial counsel was ineffective for: (1) failing to file a timely motion for new trial; and (2) failing to develop a theory of defense at trial arguing for a lesser-included offense when evidence was available to support such a defense. Following review of the record, we remand the case to the post-conviction for a determination of whether a delayed appeal is proper based upon deficient performance in trial counsel’s failing to file a motion for new trial. The denial of post-conviction relief is affirmed in all other aspects.

Consulting group that served as the agent of record for a trust established to provide insurance to employees of a county school system filed a complaint alleging a violation of the Open Meetings Act when a group of trustees met for lunch with one of the consulting group’s employees and later changed the school system’s agent of record when the employee formed a different association with another company. The trial court found that no violation of the Open Meetings Act occurred at the lunch meeting because no decision was made during the lunch. We affirm the trial court’s judgment.

The Shelby County Grand Jury indicted Appellant for two counts of especially aggravated kidnapping, one count for each victim; two counts of especially aggravated robbery, one count for each victim; and two counts of aggravated rape. At the conclusion of a jury trial, Appellant was found guilty of all counts. The trial court sentenced Appellant to an effective sentence of 125 years. On appeal, Appellant argues that the trial court erred in denying his motion to suppress his identification in the photographic lineup presented to one of the victims, that the evidence was insufficient to support his convictions, and that the trial court erred in imposing consecutive sentences. After a thorough review of the record, we conclude that the trial court did not err in denying the motion to suppress the line-up results or imposing consecutive sentences. Further, we hold that the evidence was sufficient to support his convictions. Therefore, we affirm the judgments of the trial court.

Appellant, Andre Benson, was indicted by the Shelby County Grand Jury in July of 2009 with aggravated robbery and especially aggravated kidnapping. After a jury trial, Appellant was convicted of the offenses as charged in the indictment. He was sentenced as a Range II, Multiple Offender to fifteen years in incarceration for the aggravated robbery conviction and thirty-five years as a Violent Offender for the especially aggravated kidnapping conviction. The sentences were ordered to be served concurrently, for a total effective sentence of thirty-five years at 100 percent. After the denial of a motion for new trial, Appellant initiated this appeal. The following issues are presented for our review: (1) whether Appellant is entitled to relief from his kidnapping conviction as a result of the holding in State v. White, 362 S.W.3d 559 (Tenn. 2012); (2) whether the trial court violated Appellant’s right to confront witnesses by admitting preliminary hearing testimony of the victim at trial after it was determined the victim was incompetent to testify at trial; (3) whether the trial court improperly admitted excited utterances of the victim; (4) whether the trial court erred in admitting expert witness testimony about the victim’s mental state; (5) whether the evidence was sufficient to support the convictions; (6) whether the trial court improperly sentenced Appellant; and (7) whether cumulative error affected Appellant’s constitutional due process rights. After a review of the evidence and applicable authorities, we determine: (1) the trial court properly determined that the victim was unavailable at trial such that the State could utilize her preliminary hearing testimony; (2) the trial court properly admitted excited utterances of the victim; (3) Appellant waived any issue with regard to hearsay admitted during the testimony of Jarian Henry based on the failure to object to the evidence; (5) Appellant is entitled to relief from his aggravated kidnapping conviction based on White because the issue has been fairly raised and we conclude that the error was not harmless beyond a reasonable doubt; (6) the evidence was sufficient to support the conviction for aggravated robbery; and (7) the trial court properly sentenced Appellant. Accordingly, Appellant’s aggravated robbery conviction is affirmed, but a new trial is required on the especially aggravated kidnapping conviction. Therefore, this case is remanded for further proceedings as set out in this opinion.

This appeal arises from the dismissal of a complaint alleging fraudulent paternity testing.  Discerning no error, we affirm and award attorney fees for a frivolous appeal.

The defendant, Luis Guillen, was found guilty after a trial by jury of one count of aggravated rape, a Class A felony, and one count of aggravated kidnapping, a Class B felony. He was sentenced as a violent offender to twenty-five years for the aggravated rape and to a consecutive ten years for the aggravated kidnapping, for a total effective sentence of thirtyfive years. On appeal, the defendant claims that the evidence is insufficient to support his convictions and that his sentence is excessive. After reviewing the record and the arguments of the parties, we affirm the judgments of the trial court.

Petitioner, Danny Pendergrass, appeals from the post-conviction court’s denial of his petition for post-conviction relief, in which he claimed that his guilty pleas were involuntarily and unknowingly entered and that his trial counsel was ineffective for failing to adequately investigate his case. Petitioner was charged in a 22-count presentment with multiple counts of rape of a child, incest, and aggravated statutory rape against the same victim. Petitioner entered best interests pleas to all counts and received an effective sentence of 25 years in confinement to be served at 100 percent. Following a thorough review of the record, we affirm the judgment of the post-conviction court.

The Petitioner, Larry Hunt, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his convictions of aggravated robbery, aggravated kidnapping, and aggravated rape and resulting effective sentence of thirty-two years in confinement. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel. However, because the post-conviction court failed to make any findings of fact or conclusions of law in its denial of the petition, we reverse the judgment of the post-conviction court and remand the case for further proceedings consistent with this opinion.

Appellant, Carletha Jefferson, was convicted by a Shelby County jury of voluntary manslaughter and aggravated assault. The trial court sentenced Appellant to an effective sentence of six years. On appeal, Appellant argues that the evidence was insufficient to support her conviction for aggravated assault and that the trial court erred in denying her requests for judicial diversion and probation. After a thorough review of the record, we affirm the judgments of the trial court.

The defendant, Jimmy Ray Massey, Jr., pled guilty in the Bedford County Circuit Court to felony failure to appear, a Class E felony, and was sentenced by the trial court as a career offender to six years at 60% in the Department of Correction. On appeal, he argues that his guilty plea was involuntary and that the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

Appellant, James Ray Walker, was indicted by the Madison County Grand Jury in January of 2011 for one count of official misconduct and one count of theft of property valued at less than $500. The events that gave rise to the indictments occurred in May of 2010 while Appellant was employed by the United States Postal Service in Jackson, Tennessee. After a jury trial, Appellant was found guilty of both offenses. As a result, the trial court sentenced Appellant to two years for the conviction for official misconduct. The trial court ordered Appellant to serve 90 days of the sentence in incarceration and the balance of the sentence on probation. Appellant was sentenced to thirty days for the theft of property conviction, to be served concurrently with the sentence for official misconduct. After the denial of a motion for new trial, Appellant filed a timely notice of appeal. On appeal, Appellant presents various allegations of ineffective assistance of counsel. In addition, he asks this Court to determine if the evidence was sufficient to support the conviction and whether his sentence was “unfair.” After a review of the record, we determine that Appellant has waived any issues with respect to ineffective assistance of counsel for failure to support the issues with argument, citations to the record, or citations to authority. Moreover, we determine that the evidence was sufficient to support the convictions and that the trial court did not abuse its discretion in sentencing Appellant. Consequently, the judgments of the trial court are affirmed.

The Defendant, Kelly Ruth Osteen, pled guilty to aggravated burglary, theft of property valued under $500.00, fraudulent use of a credit card or debit card, and illegal possession of a credit card or debit card. The trial court sentenced the Defendant to a total effective sentence of three years, to be served on supervised probation. This sentence was to run concurrently with another sentence, number II-CR084354. After each of two subsequent arrests for additional criminal offenses in case number II-CR065737 and case number II-CR085803, a probation violation warrant was issued. The trial court revoked the Defendant’s probation , ordering her to serve seventy days and then return to supervised probation with an additional condition that she successfully complete the 21^st Judicial District Drug Court program. Thereafter, another probation violation warrant was issued for the Defendant’s failure to complete the drug court program, and, after a hearing, the trial court revoked the Defendant’s probation and ordered that she serve her sentence in jail. On appeal, the Defendant contends that the trial court did not have jurisdiction to revoke her sentence and seeks jail credit for time she spent participating in the drug court program. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

The defendant, Martin Dean "Cub" Meeks, was convicted by a Grundy County jury of first degree premeditated murder and sentenced to life imprisonment. He raises three issues on appeal: (1) whether the trial court failed to properly exercise its duty as thirteenth juror; (2) whether the evidence is sufficient to establish premeditation; and (3) whether the trial court erred by not instructing the jury on voluntary intoxication. Following our review, we affirm the judgment of the trial court.

In 1996, Petitioner, Tony Von Carruthers, was convicted of three counts of first degree murder and sentenced to death on each count by a Shelby County Jury. See State v. Carruthers, 35 S.W.3d 516, 523 (Tenn. 2000). Petitioner subsequently sought post-conviction relief for, inter alia, ineffective assistance of pretrial counsel for failing to retain an expert in the field of deoxyribonucleic acid (“DNA”) analysis. See Tony Carruthers v. State, No. W2006-00376-CCA-R3-PD, 2007 WL 4355481, at *1 (Tenn. Crim. App., at Jackson, Dec. 12, 2007), perm. app. denied, (Tenn. May 27, 2008). After a hearing, the post-conviction court denied relief, and this Court affirmed the post-conviction court’s judgment. Id. In December of 2011, Petitioner sought to have DNA analysis performed on a vaginal swab and a blanket pursuant to the Post-Conviction DNA Analysis Act of 2001. The Shelby County Criminal Court denied relief. Petitioner appeals, arguing that the post-conviction court improperly denied relief. Because Petitioner did not establish the criteria for ordering DNA analysis under the Act, the judgment of the post-conviction court is affirmed.

The trial court granted Mother’s petition to waive mediation and modify custody, and modified the parties’ parenting schedule upon finding a material change of circumstance. We affirm.

This appeal involves the modification of a parenting plan. The father filed a petition alleging a material change in circumstances and seeking to be designated primary residential parent for the parties’ minor son. After an evidentiary hearing, the trial court found that the mother had violated the parenting plan and held that this constituted a material change in circumstances. It changed the designation of primary residential parent from the mother to the father, held the mother in contempt, and awarded the father attorney fees as punishment for the contempt. The mother now appeals. The trial court failed to make sufficient findings of fact and conclusions of law as required under Tenn. R. Civ. P. 52.01. After a careful review of the evidence, we affirm the finding of a material change in circumstances, but hold that the trial court erred in holding that it was in the child’s best interest to change the designation of primary residential parent from the mother to the father. We also vacate the holding of contempt against the mother and the award of attorney fees as punishment for the alleged contempt and remand for additional findings.

This is a termination of parental rights case focusing on the minor children (“the Children”) of Tammy S. (“Mother”). Upon order of the Campbell County Juvenile Court entered September 19, 2011, the Children were taken into emergency protective custody by the Tennessee Department of Children’s Services (“DCS”) due to unsanitary conditions in the family home and concerns regarding inappropriate supervision and medical neglect of one of the Children. DCS filed a petition seeking to terminate Mother’s parental rights on July 11, 2012. The petition alleged several statutory grounds for termination, including abandonment based on willful failure to visit the Children, abandonment based on failure to provide a suitable home, persistent conditions, and substantial noncompliance with the permanency plan. Following a bench trial conducted October 4, 2012, the trial court terminated Mother’s parental rights after finding by clear and convincing evidence that (1) Mother had abandoned the Children due to her failure to provide a suitable home, (2) Mother had failed to substantially comply with the permanency plan, and (3) the conditions leading to the Children’s removal persisted. The trial court further found that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. We affirm.

This complex litigation arises out of a series of disputes between two former partners and members in more than twenty partnerships and limited liability companies that were in the business of real estate development. Following a tumultuous six year business relationship, in an attempt to extricate themselves from their business relationships, the parties executed a Membership Interest and Exchange Agreement, which distributed the entities so a portion were solely owned by one former partner/member and the others were solely owned by the other former partner/member. After closing on the Exchange Agreement, the plaintiff commenced this action against his former business partner alleging fraud, violation of the Tennessee Consumer Protection Act, breach of contract, breach of fiduciary duty, and fraudulent transfer of which most, but not all, of the claims arose from the Exchange Agreement. The complaint was later amended to add additional claims. The defendant filed a Counter-Claim alleging that the plaintiff was also in breach of the Exchange Agreement. The trial court dismissed several of the plaintiff’s claims on summary judgment. The remaining issues were tried. At the close of the plaintiff’s proof during the jury trial, the trial court granted a directed verdict in favor of the defendant on some, but not all, of the remaining claims. At the conclusion of the jury trial, the jury entered a verdict for the defendant on the remaining claims. Although the jury found the defendant in breach of three provisions of the Exchange Agreement and a partnership agreement of a jointly owned company, the jury awarded no damages based upon the plaintiff’s prior knowledge and acquiescence of the breaches. Thereafter, each party sought to recover their respective attorney’s fees pursuant to § 11(l) of the Exchange Agreement. The trial court held that defendant was the prevailing party; therefore, the trial court granted the defendant’s motion to recover his attorney’s fees pursuant to § 11(l) of the Exchange Agreement and awarded attorney’s fees and costs to the defendant. The trial court also awarded the defendant indemnity under the bylaws of one corporation and the partnership agreement of another.The trial court also assessed discretionary costs against the plaintiff. On appeal, the plaintiff raises numerous issues relating to the dismissal of his claims on summary judgment and directed verdict, the instructions given to the jury, the trial court’s ruling on a post-trial motion to amend the defendant’s answer, attorney’s fees and costs, and indemnity. We affirm the trial court’s rulings on summary judgment and directed verdict in all respects. We affirm the trial court’s ruling on attorney’s fees and costs under the Exchange Agreement, holding that as the trial court correctly determined the defendant was the prevailing party for those purposes. We also affirm the trial court’s determinations that the defendant was entitled to indemnification under the provisions of the Partnership Agreement and indemnification under the bylaws of IS Investment, Inc.

Appellant, Joshua Brandon Tate, was indicted by the Davidson County Grand Jury for seven counts of sexual battery, eight counts of rape, and one count of solicitation of a minor. A jury found Appellant guilty on all counts. Appellant was sentenced to an effective sentence of twenty years. The trial court granted a portion of Appellant’s motion for new trial, vacating the rape convictions in counts seven through twelve, and the conviction for sexual battery in count thirteen. As a result, Appellant’s effective sentence was reduced to eleven years. On appeal, the following issues are raised for our review: (1) whether the evidence was sufficient to support the convictions; (2) whether the trial court erred in admitting the recordings of the victim’s interview; (3) whether the trial court erred in allowing testimony about Appellant’s failure to attend voluntary interviews with the police; and (4) whether the trial court erred in allowing testimony about Appellant’s failure to attend voluntary interviews with the police. After a review of the record, we determine: (1) the evidence is sufficient to support the convictions; (2) the trial court properly admitted prior consistent statements of the victim in order to rehabilitate her testimony following cross-examination. However, the trial court erred in admitting testimony to the effect that Appellant failed to attend voluntary police interviews, and this error requires reversal for a new trial.

The plaintiffs brought this action alleging wrongful foreclosure after a judgment against them became final in an earlier, separate unlawful detainer lawsuit filed by Federal National Mortgage Association (“FNMA”). The trial court dismissed the action as barred by the doctrine of res judicata. We affirm the judgment of the trial court because the plaintiffs could and should have raised the issues pertaining to the alleged wrongful foreclosure in the earlier detainer action.

This appeal involves a motion to set aside a default judgment. The wife filed a complaint for divorce. The husband was served with process. After the husband failed to file an answer, the wife filed a motion for a default judgment. The husband filed no response to the motion. The trial court granted the wife a default judgment and held a hearing on the wife’s divorce complaint. The husband did not appear at the hearing. Based on the evidence wife presented at the hearing, the trial court divided the marital estate. The husband then filed a motion to set aside both the default judgment and the divorce decree. The trial court denied the husband’s motion, and the husband now appeals. Discerning no error, we affirm.

Appellant, Marlon E. Sontay, was indicted by the Davidson County Grand Jury for four counts of rape of a child, two counts of aggravated sexual battery, and one count of rape. Appellant was convicted by a jury of all counts. Appellant was sentenced to twenty five years for each count of rape of a child, eight years for each count of aggravated sexual battery, and eight years for rape. The trial court ordered Count Two for rape of a child to run consecutively to Count One for rape of a child. The remaining counts were ordered to run concurrently to each other, for a total effective sentence of 50 years at 100%. Appellant filed a timely motion for a new trial, which was denied by the trial court. Appellant raises the following issues for our review: (1) whether the trial court erred in denying the motion to suppress; (2) whether the trial court improperly admitted hearsay testimony of statements made by the victim during the testimony of the nurse practitioner who performed the victim’s medical examination; (3) whether the evidence was sufficient to support the convictions; (4) whether the trial court improperly sentenced Appellant; and (5) whether the trial court erred in declining to find Tennessee Code Annotated sections 39-13-504, 39-13-522, and 39-13-523 unconstitutional. After a review of the record and applicable authorities, we hold that: (1) the trial court did not abuse its discretion in denying the motion to suppress where Appellant voluntarily confessed to detectives; (2) Appellant has waived any issue with regard to the admission of hearsay testimony by failing to object to the testimony at trial and raise the issue in a motion for new trial; (3) the evidence is sufficient to support the convictions for rape of a child, aggravated sexual battery, and rape; (4) the trial court did not abuse its discretion in sentencing Appellant within the range of punishment for his convictions; and (5) the trial court did not err in refusing to find Tennessee Code Annotated sections 39-13-504, 39-13-522, and 39-13-523 unconstitutional. Accordingly, the judgments of the trial court are affirmed.

The Circuit Court dismissed this appeal from General Sessions Court based on the Appellant’s failure to file a surety bond. Appellant paid costs in the General Sessions Court pursuant to Tennessee Code Annotated Section 8-21-401(b)(1)(C)(i), but did not submit a surety bond under Tennessee Code Annotated Section 27-5-103. The circuit court held that failure to post the surety bond under Section 27-5-103 resulted in a lack of subject matter jurisdiction in the circuit court. Based on this Court’s holding in Bernatsky v. Designer Baths & Kitchens, L.L.C., No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), we reverse and remand for further proceedings.

Mother and Father were divorced in 2007 and granted joint custody of their then-six year old child. Mother filed a petition for modification in which she asked to be named the primary residential parent because the joint arrangement was not working for the parties and was not in Child’s best interest. Trial court granted Mother’s petition to be named primary residential parent, but directed that major decisions for Child should be made jointly. Father appealed, arguing that trial court erred in finding material change of circumstances had occurred since the initial parenting plan was entered and that the comparative fitness analysis favored Mother as the primary residential parent. Mother appealed trial court’s judgment regarding major decision making. We affirm trial court’s judgment modifying the parenting plan to name Mother the primary residential parent and amend the plan to have Mother make major decisions for Child rather than both Mother and Father jointly. We affirm the trial court’s denial of Mother’s attorney fees but award her reasonable fees incurred on appeal.