APPELLATE COURT OPINIONS

The petitioner, Jiovani Castillo Galeana, petitioned the Davidson County Criminal Court for post-conviction relief from his 2011 guilty-pleaded conviction of possession with intent to sell 300 grams or more of cocaine. The conviction resulted in a Range I sentence of 18 years to serve in the Department of Correction. Following an evidentiary hearing, the post-conviction court denied relief, and following our review, we affirm the order of the post-conviction court.

The Defendant-Appellant, Donta Henry Ivory, appeals from the Montgomery County Circuit Court’s order revoking his probation. Ivory entered a guilty plea to statutory rape, and he received a suspended sentence of two years. In a separate case, he later entered a best interest plea to an amended charge of aggravated assault and received a five-year suspended sentence concurrent with the previous two-year sentence. On appeal, Ivory argues that the trial court erred in revoking his probation. Upon review, we affirm the judgment of the trial court.

The Defendant-Appellant, Scotty Dale Staggs, was indicted by an Overton County Grand Jury for aggravated burglary, theft of property valued at more than $500 but less than $1000, theft of property valued at $500 or less, and evading arrest. Prior to trial, the State entered a nolle prosequi on the charge of theft of property valued at $500 or less. Staggs was subsequently convicted of aggravated burglary, a Class C felony; theft of property valued at more than $500 but less than $1000, a Class E felony; and evading arrest, a Class A misdemeanor. The trial court sentenced him as a Range III, persistent offender to concurrent sentences of fifteen years for the aggravated burglary conviction and six years for the theft conviction and sentenced him to a concurrent sentence of eleven months and twenty-nine days for the misdemeanor evading arrest conviction, for an effective sentence of fifteen years in confinement. On appeal, Staggs argues: (1) the evidence is insufficient to sustain his convictions for aggravated burglary, theft of property valued at more than $500 but less than $1000, and evading arrest; (2) the trial court abused its discretion in denying his motion to sever the evading arrest charge from the aggravated burglary and theft charges; (3) the trial court abused its discretion in admitting the victims’ surveillance videotape into evidence; (4) the trial court erred in instructing the jury on flight; (5) the State committed prosecutorial misconduct during its opening statement; and (6) his sentence was excessive. Upon review, we affirm the judgments of the trial court.

The trial court granted summary judgment in this declaratory judgment action, finding that the will at issue was unambiguous. Having determined that the will at issue contains a latent ambiguity that must be resolved through the use of extrinsic evidence, we reverse the grant of summary judgment and remand for further proceedings. Affirmed in part, reversed in part, and remanded.

A Williamson County Circuit Court Jury convicted the appellant, Robert Jason Burdick, of rape, aggravated kidnapping, and aggravated burglary. The trial court imposed a total effective sentence of thirty years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s denial of his motion to suppress, the sufficiency of the evidence sustaining his convictions, and the trial court’s jury instructions regarding the kidnapping offense in light of State v. White, 362 S.W.3d 559 (Tenn. 2012). Upon review, we affirm the judgments of the trial court.

A Knox County Criminal Court Jury convicted the appellant, Tony Dixon, of attempted aggravated burglary. The trial court sentenced the appellant as a Range I, standard offender to three years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence, the trial court’s admission of hearsay evidence indicating that the victim did not consent to the appellant’s entering the apartment, and the trial court’s failure to instruct the jury that an accomplice’s testimony must be corroborated. Upon review, we affirm the judgment of the trial court.

Petitioner, an inmate of the Tennessee Department of Correction, was charged with the prison disciplinary offense of Refusing a Drug Test because he failed to provide an adequate amount of urine for testing. Following a disciplinary hearing he was found guilty of the offense. He filed a Petition for Writ of Certiorari, which was granted, and Respondents filed a certified copy of the record of Petitioner’s disciplinary proceedings. The trial court found the disciplinary board did not act in an illegal or arbitrary manner, and dismissed the case. We affirm.

A Montgomery County jury convicted the Defendant, Corey D. Gilbert, of first degree felony murder and attempted aggravated robbery. The trial court imposed a mandatory life sentence for the felony murder conviction and a three-year sentence for the attempted aggravated robbery conviction. On appeal, the Defendant challenges the evidence supporting his conviction for attempted aggravated robbery as the underlying offense for the felony murder conviction. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Neighbor of property owner who received a variance from a side yard setback requirement in zoning ordinance filed an action seeking certiorari review of the Board of Zoning Appeals’ grant of the variance. The trial court determined that the Board’s action was within its authority pursuant to Tenn. Code Ann. § 12-7-207(3) and affirmed the grant of the variance. We concur with the trial court and affirm the Board’s action.

Petitioner, Orlando M. Ladd, was indicted by the Davidson County Grand Jury for possession with intent to sell or deliver in a drug-free zone, evading arrest, possession of drug paraphernalia, and two counts of felony simple possession of a controlled substance. He entered a negotiated plea to possession with intent to sell or deliver, evading arrest and one count of simple possession. He received an effective sentence of twelve years to serve at forty-five percent incarceration to be served concurrently to a twelve-year sentence he was already serving at the time of sentencing. Petitioner filed a petition for post-conviction relief arguing that he received ineffective assistance of counsel and that he entered his guilty plea unknowingly and involuntarily. The post-conviction court held a hearing and denied the petition. Petitioner appeals that denial to this Court. After a thorough review of the record, we conclude that the petition was properly denied, and we affirm the judgment of the post-conviction court.

In this case, Partner and Decedent created Double J Company for the purpose of buying and selling real estate. One month following the creation of Double J Company, Decedent personally purchased the Property, which he thereafter deeded to Double J Company. Following Decedent’s death, Partner filed a complaint against Heirs and the estate for partition. Heirs objected, arguing that Partner and Decedent never formed a valid partnership and that the Property was subject to the administration of Decedent’s estate. Following a hearing, the trial court deemed the Property partnership property and ordered the sale of the Property. Heirs appeal. We affirm the decision of the trial court.

Appellant, Stephen Miguel Hernandez, and co-defendant, Justin Dexter Brummett, were indicted by the Davidson County Grand Jury in October of 2010 for first degree murder and aggravated robbery. After a jury trial, Appellant was found guilty of felony murder and the lesser included offense of facilitation of aggravated robbery. As a result of the convictions, Appellant was sentenced to life in prison for the felony murder conviction and five years for the facilitation of aggravated robbery conviction, to be served concurrently with the life sentence. After the denial of a timely motion for new trial, Appellant appealed. On appeal, he challenges the sufficiency of the evidence, particularly the credibility of his accomplice’s testimony. After a thorough review of the record and authorities, we determine that the testimony of co-defendant Brummett was sufficiency corroborated by other State witnesses. Further, the jury assessed the credibility of the witnesses and determined that the evidence was sufficient to support convictions for felony murder and facilitation of aggravated robbery, a task within their province. Accordingly, the judgment of the trial court is affirmed.

The Petitioner, James Wallie Robertson, appeals the Lawrence County Circuit Court’s summary dismissal of his petition for post-conviction relief from his 1995 guilty pleas to first degree murder, aggravated kidnapping, aggravated burglary, automobile burglary, two counts of forgery, and passing a forged check and his effective sentence of life imprisonment plus twenty-five years. He contends that the trial court erred by summarily dismissing his petition without appointing counsel or holding an evidentiary hearing. We affirm the judgment of the trial court.

I concur in the results reached and most of the reasoning in the majority opinion. I do not believe, however, that this court’s standard of review of hearsay in State v. Gilley, 297 S.W.3d 739 (Tenn. Crim. App. 2008), was "repudiated" or rejected by our supreme court in Pylant v. State, 263 S.W.3d 854, 871 n.26 (Tenn. 2008). In fact, the supreme court noted that the trial court’s ruling was error under either standard of review. Id. This is certainly not a rejection of Gilley.

In this workers’ compensation case, the employee alleged he suffered a ruptured cervical disk while lifting metal plates at work. His employer denied the claim, contending the neck injury was caused or worsened by a subsequent motor vehicle accident. The employee filed this action in the Chancery Court of Hardeman County, seeking workers’ compensation benefits. The trial court ruled in favor of the employee, awarding temporary and permanent disability benefits plus future medical benefits. The employer has appealed, contending the evidence preponderates against the trial court’s finding. 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 in accordance with Tennessee Supreme Court Rule 51. We affirm the trial court’s judgment.

I write separately to express my belief that in Pylant v. State, 263 S.W.3d 854, 871 n.26 (Tenn. 2008), the Tennessee Supreme Court indeed "repudiated" or rejected the de novo standard for review of hearsay issues adopted by the Court of Criminal Appeals in State v. Gilley, 297 S.W.3d 739, 759-60 (Tenn. Crim. App. 2008). The word "repudiate" means "to reject as having no authority or binding force." Webster’s New Universal Unabridged Dictionary 1636 (2nd ed. 1996). When I first joined Judge Witt’s decision in Gilley, I believed that we were setting forth a new and correct standard of review for hearsay issues and that we were providing a clear first step for any such analysis in the trial court. I still have nothing but respect for both Judge Witt’s reasoning and his conclusion in that case.

Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”) sued W. Phillip Reed, Personal Representative of the Estate of Carol LaRue; Rufus Everett; Delight Everett; and Lilla Farner seeking a declaratory judgment with regard to rights and obligations under a commercial general liability insurance policy. Tennessee Farmers filed a motion for summary judgment. After a hearing the Trial Court entered its order on June 12, 2012 granting Tennessee Farmers summary judgment after finding and holding, inter alia, that the insurance policy was not ambiguous, that the phrase “property damage” in the insurance policy did not include the type of loss allegedly suffered by the Everetts and Ms. Farner, and that the commercial general liability insurance policy provides no coverage to W. Phillip Reed as Personal Representative of the Estate of Carol LaRue for the claims filed by the Everetts and Ms. Farner. Rufus Everett, Delight Everett, and Lilla Farner (“Defendants”) appeal to this Court. We affirm.

Appellant, Wesley Dawone Coleman, was indicted by the Obion County Grand Jury for aggravated burglary, theft of property valued at over $500, and evading arrest. After a jury trial, Appellant was convicted of theft of property valued at over $500, aggravated burglary, and evading arrest. As a result of the convictions, Appellant received an effective sentence of ten years. Appellant appeals, challenging the sufficiency of the evidence for the theft and aggravated burglary convictions as well as his sentence. After a review of the record and applicable authorities, we conclude that the evidence was sufficient to support the convictions and that the trial court did not abuse its discretion in sentencing Appellant as a Range II, multiple offender, to ten years in incarceration.

This direct appeal presents a certified question of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. After the trial court denied his motion to suppress, the Defendant, Michael D. Boone, entered a guilty plea in the Davidson County Criminal Court to possession with intent to sell or deliver .5 grams or more of a substance containing cocaine, a Class B felony, and possession with intent to sell or deliver not less than one-half ounce or more than ten pounds of marijuana, a Class E felony. The trial court ordered the agreed sentence of twenty-four years in the Tennessee Department of Correction. Boone properly reserved the following certified question of law: “Does the affidavit of probable cause in the warrant . . . contain sufficient information to establish a nexus between the residence to be searched and criminal activity; and, if so, does the affidavit further contain reliable information of ongoing criminal activity so as to establish probable cause . . . ?” After a thorough review of the record and applicable authorities, we conclude that the trial court did not err when it determined the affidavit provided sufficient probable cause to support the search warrant. As such, we affirm the trial court’s order denying the Defendant’s motion to suppress, and we affirm the Defendant’s judgments of conviction.

Appellant, Lee Weaver, Jr., was indicted by the Hardin County Grand Jury for one count of aggravated assault based upon an altercation with his wife which resulted in her broken arm; one count of felony evading arrest; one count of reckless endangerment; and one count of resisting arrest. He entered a negotiated plea to the charges which resulted in an effective sentence of three years. Appellant requested alternative sentencing. After a hearing, the trial court denied his request. On appeal, Appellant argues that the trial court erred in denying his request to serve his sentence in Community Corrections or in the alternative to some form of probation. After a review of the record, we conclude: (1) that Appellant is not eligible for Community Corrections because he committed aggravated assault which is an offense against a person; and (2) that the trial court did not abuse its discretion in denying probation because it was necessary to avoid depreciating the seriousness of the offense. Therefore, we affirm the judgments of the trial court.

Because of the great deference afforded to a magistrate judge when making a probable cause determination, I concur with the conclusion reached by the majority in this case. I write separately, however, to express my reluctance in affirming the Defendant’s convictions. As an initial matter, there are several concerns with the affidavit. It contained a single introductory statement that the detective “received information that illegal narcotics were at the premises of 1409 Jackson Street.” However, it failed to provide the source of this information, the point in time when this information was received by the detective, or any specific details regarding the target residence or the illegal narcotics activity. Nothing in the affidavit established that the confidential informant knew that “John” was engaged in the sale of illegal narcotics from the target residence, that the target residence had been under police surveillance, or that any surveillance had uncovered illegal narcotics activity at or around the target residence. There is simply nothing in the affidavit connecting the confidential informant to the Defendant or the target residence. Finally, the affidavit failed to show any effort by law enforcement to identify the Defendant or establish that the target residence was, in fact, the Defendant’s home.
 

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the denial of a motion to recuse the trial court judge from presiding over a civil action in which one of the Defendants served on a non-profit board with the trial court judge. Having reviewed the Plaintiff’s petition for recusal appeal pursuant to Rule 10B of the Rules of the Tennessee Supreme Court, we affirm the Trial Court’s denial of the motion to recuse.

Defendant, Marcus Terrell Church, was indicted by a Davidson County Grand Jury for aggravated robbery and especially aggravated kidnapping. His first trial ended in a mistrial. At a subsequent trial, Defendant was convicted as charged. The trial court imposed concurrent sentences of fifteen years as a Range II offender for aggravated robbery and twenty-five years as a Range I offender for especially aggravated kidnapping. On appeal, Defendant argues: (1) the trial court erred in denying his motion to suppress identification evidence; (2) the trial court improperly admitted evidence that Defendant committed an unrelated purse-snatching during the kidnapping in this case; (3) the trial court erred in admitting hearsay testimony concerning Defendant’s nickname; and (4) the trial court improperly sentenced Defendant. After a thorough review of the record, we affirm the judgments of the trial court.

The petitioner, Gerald Sanford, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance by not hiring DNA and blood spatter experts to testify at his trial. Following our review, we affirm the denial of the petition.

In this appeal from the Final Decree of Divorce, the father of the parties’ four minor children challenges the division of marital property, the permanent parenting plan, an upward deviation in child support of $16,875 per year to help pay for private school for three of the children, and a $50,000 judgment for the mother’s attorney’s fees. We affirm the division of the marital property and the parenting schedule. As for requiring the father to pay up to $16,875 per year toward private school costs of three of the children, we have determined that the trial court failed to apply the correct legal standard for such an upward deviation and find that the father does not have the financial means to pay an upward deviation. As for requiring the father to pay $50,000 of the mother’s attorney’s fees, we have determined that she was given 60 percent of the marital assets and her income is substantially more than that of the father’s, thus, applying the ability to pay and the need standard, we find no basis for requiring the father to pay the mother’s attorney’s fees at trial or on appeal. Thus, we reverse the award for attorney’s fees.