APPELLATE COURT OPINIONS

The petitioner, Jasper Lee Vick, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he was denied the right to a speedy trial and he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.

This case presents a question of first impression regarding the scope of the term “lender” as used within the Tennessee Home Loan Protection Act. The parties filed competing motions for summary judgment: Plaintiff claiming that the Defendants were “lenders” subject to the Act and Defendants claiming that they were not “lenders” subject to the Act. The trial court concluded that Defendants were not “lenders,” and therefore it granted summary judgment in Defendants’ favor. For the following reasons, we reverse the trial court’s grant of summary judgment to Defendants, we grant partial summary judgment in favor of Plaintiff, and we remand for further proceedings consistent with this opinion.
 

The appellant, Travis Nipper, was indicted for the Class D felony of Theft of $1,000 or more by the McMinn County Grand Jury. After a trial by jury, he was convicted of the Class E felony of Theft over $500 and was sentenced to one year in the Department of Correction. The appellant appeals his conviction and sentence, stating that his due process rights were violated when the trial court excluded defense evidence during trial that allegedly had been ruled admissible in a pretrial hearing, and that he had been improperly denied an alternative sentence to incarceration. We affirm the appellant's conviction and sentence.

Following a jury trial, the Defendant, Raynella Dossett Leath, was convicted of first degree premeditated murder and sentenced to imprisonment for life, with the possibility of parole. See Tenn. Code Ann. § 39-13-202. In this appeal as of right, the Defendant contends (1) that she was retried in violation of her state and federal constitutional protections against double jeopardy; (2) that the trial court erred by declining to exclude test results from analysis of the victim’s blood and urine; (3) that the trial court erred by admitting “certain estate planning documents” into evidence at trial; (4) that the trial court erred by denying the Defendant’s motion for a mistrial after a witness testified that she had previously stated that she was “scared” of the Defendant; (5) that the evidence was insufficient to sustain the Defendant’s conviction for first degree premeditated murder; (6) that the trial court erred by failing to instruct the jury on the State’s duty to preserve evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (7) that the trial court’s jury instruction regarding the defense of alibi improperly shifted the burden of proof onto the Defendant; (8) that the trial court erred by failing to instruct the jury on the Defendant’s “theory of defense”; (9) that the trial court used an improper method to select the alternate juror; (10) that members of the jury committed misconduct by deliberating prematurely and reviewing extraneous prejudicial information; (11) that the State withheld evidence favorable to the Defendant in violation of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny; (12) that the Defendant is entitled to a new trial based upon newly discovered evidence; (13) that the trial court, by accepting the jury’s guilty verdict, “abdicated” its role as the thirteenth juror; and (14) that the Defendant is entitled to a new trial based upon cumulative error. Following our review, we affirm the judgment of the trial court.

The Defendant, John T. Freeland, Jr., appeals from his Madison County Circuit Court convictions of first degree premeditated murder, see Tenn. Code Ann. § 39-13-202(a)(1); first degree murder committed in the perpetration of an especially aggravated kidnapping, see id. § 39-13-202(a)(2); especially aggravated kidnapping, see id. § 39-13-305; and tampering with evidence, see id. § 39-16-503(a)(1). Following a bench trial regarding both guilt and punishment, see id. § 39-13-205, the trial court sentenced Defendant to death for each first degree murder conviction based upon its findings that the defendant was previously convicted of one or more felonies whose statutory elements involve the use of violence, see id. § 39-13-204(i)(2); the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant, see id. § 39-13-204(i)(6); the murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, an aggravated robbery, see id. § 39-13-204(i)(7); and that these aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt. The trial court also imposed consecutive sentences of 20 years’ incarceration for the especially aggravated kidnapping conviction and five years’ incarceration for the tampering with evidence conviction. In addition to challenging the sufficiency of the evidence to support his convictions of first degree murder and especially aggravated kidnapping, Defendant challenges the trial court’s denial of his motion to suppress statements and the imposition of the death penalty. Because we determine that the trial court failed to merge the first degree murder convictions at sentencing, we remand the case for correction of the judgments to effectuate proper merger. In all other respects, however, we affirm the judgments of the trial court.

Following a jury trial in the Madison County Circuit Court, Defendant Timothy James Coley was convicted of the Class B felony offense of initiation of the process to manufacture methamphetamine, and also of the Class A misdemeanor offenses of possession of methamphetamine, possession of drug paraphernalia, and evading arrest. For each of the Class A misdemeanors, he was sentenced to serve concurrent sentences of 11 months and 29 days, with a 75% service by incarceration prior to eligibility for work release, furlough, trusty status and/or rehabilitation programs. Defendant was sentenced to serve 12 years as a Range I standard offender for the felony conviction, with service in the Community Corrections Program, consecutive to, and following service of the sentence for the misdemeanor convictions. Typed under “Special Conditions” of each judgment for a misdemeanor conviction is a requirement that the incarceration must be served in the Madison County Jail and not at the Madison County penal farm. Also typed in the Special Conditions section is the provision that Defendant was not eligible for work release or “any other special jail credits.” Handwritten on the judgment for possession of methamphetamine is the addition “(other than [g]ood [b]ehavior credits).” Defendant presents one very narrow issue in this appeal. He argues that the trial court had no authority to place any restrictions on “the earning of credits and the manner in which the credits are earned.” Specifically, he asserts he should be entitled to sentence credits under Tennessee Code Annotated section 41-2-147. The state filed a brief with a detailed argument section, but failed to address the precise issue raised by Defendant. Following a thorough review of the record and Defendant’s brief, we reverse the judgments of the trial court as to the sentencing credit restrictions in the misdemeanor judgments and remand for entry of amended judgments that do not include the restriction on earning sentencing credits.

A jury convicted the defendant, Frank Graham, of the first degree premeditated murder of his ex-fiancee, Taffi Crawford. The defendant received a life sentence. On appeal, the defendant contests the sufficiency of the evidence establishing premeditation. He also asserts that the trial court erred in refusing to suppress the statement he gave police, in which he acknowledged having accidentally shot the victim. The defendant asserts that he was arrested without probable cause and that his waiver of rights was not valid because police did not inform him about the presence of an attorney who had been contacted by his family to represent him. The defendant also appeals on the ground that the trial court erred in allowing certain testimony regarding prior bad acts. After a thorough review of the record, we conclude that the trial court did not err, and we affirm the judgments of the trial court.

This appeal involves post-divorce 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 a material change in circumstances but declined to designate the father as primary residential parent. Instead, the trial court left the mother in place as primary residential parent and increased the father’s parenting time. The father now appeals the trial court’s decision not to designate him as the primary residential parent. We reverse, holding that the evidence in the record preponderates against the trial court’s holding that it is in the child’s best interest for the mother to remain the primary residential parent, so the trial court erred in denying the father’s petition to designate him as the primary residential parent.
 

This is an appeal from an order entered on March 12, 2013. Because the appellant did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App.
P. 4, we dismiss the appeal.
 

Former sales associate brought wrongful termination suit against his former employer, alleging that his termination was in breach of contract and violated the Tennessee Disability Act. When the employer failed to answer the complaint, the trial court granted the employee a default judgment on liability; the court subsequently entered an order granting the employee judgment for $184,437.50. The Employer filed various motions seeking to have the judgments set aside; the court declined to set aside the default judgment but set aside the monetary award. Following a hearing, the court awarded the employee back pay in the sum of $55,590.74 and counsel fees totaling $60,107.25. Employer and employee appeal. Finding no error, we affirm the judgment of the trial court.
 

This appeal involves two letters of credit issued by First State to Commerce Bank for the benefit of Debtor, who subsequently defaulted on two loans that were secured by the letters. Commerce Bank issued a sight draft requesting full payment, but First State submitted partial payment. Commerce Bank filed suit. Following a hearing, the trial court held that First State was obligated to fulfill each letter of credit in its entirety. The court granted Commerce Bank’s request for attorney fees but denied the request for pre-judgment interest. First State and Commerce Bank appeal. We affirm the decision of the trial court.

The Defendant, Mansour Bin El Amin, appeals from his conviction by a Montgomery County Circuit Court jury for theft of property valued at more than $1000, a Class D felony. See T.C.A. § 39-14-103 (2010). The trial court sentenced the Defendant as a Range II, multiple offender to seven years, six months’ confinement. The Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.
 

Keith Allen Powell (“the Defendant”) pleaded guilty to two counts of theft of property over $1,000, Class D felonies, and one count of simple possession of Lortab and Soma pills, a Class A misdemeanor. The plea agreement provided that the Defendant would serve concurrent sentences for the two theft convictions but otherwise left sentencing for all the convictions open to the trial court. At the time of sentencing, the Defendant also had a community corrections violation for an additional conviction of theft of property over $1,000. Following the sentencing hearing, the trial court sentenced the Defendant to an effective sentence of four years’ incarceration. The Defendant has appealed the trial court’s sentence, asserting that the trial court erred in requiring the Defendant to serve his sentence in confinement. Upon a thorough review of the record, we affirm the trial court’s judgments.
 

Homeowners claim that cracks in the exterior bricks of their home were caused by blasting in the neighborhood. Their insurance company denied coverage under the homeowner policy. The juryreturned a verdict in favor of the homeowners. Based upon our construction of the insurance contract and its exclusion for damage caused by earth movement, we conclude that the judgment approving the verdict is erroneous and must be reversed.
 

The issue in this appeal is whether the circuit court that had granted the divorce lost subject matter jurisdiction to hear a later petition for change of custody. James Franklin Holley, III (“Father”) and Paula Jean Holley (“Mother”) were divorced in the Fourth Circuit Court for Knox County (“the Trial Court”). Mother was given primary custody of the parties’ two minor children (“the Children”), with Father having co-parenting time. Later, Father filed a petition (“the Petition”) to change custody based on Mother’s alleged neglect of the Children’s psychological and educational issues. The Trial Court held that it lacked jurisdiction to hear the Petition as juvenile court has exclusive jurisdiction to hear petitions alleging dependency and neglect. Father appeals. We hold that the Petition did not allege under the relevant statutes that the Children were dependent and neglected and, therefore, the Trial Court did have jurisdiction to hear the Petition. We reverse the judgment of the Trial Court.

Tina K. (“Mother”) appeals an order terminating her parental rights to her daughter, Courtney N. (“the Child”), now age 12. The Child and her older sister, Tiffany N. (“Sister”) (collectively “the Children”) were placed in the protective custody of petitioners, Raymond and Charlene W., (“Uncle and Aunt”). They were subsequently adjudicated dependent and neglected in Mother’s care. In January 2012, Uncle and Aunt, together with Janie Lindamood, the Child’s court-appointed guardian ad litem, (collectively “Petitioners”), filed a petition seeking to terminate Mother’s parental rights. Following a bench trial, the court granted the petition after finding that multiple grounds for termination exist and that termination is in the Child’s best interest. The court stated that it made both findings by clear and convincing evidence. Mother appeals each of these determinations. We vacate the finding of abandonment based on conduct exhibiting a wanton disregard for the Child’s welfare as such ground is not implicated by the facts of this case. In all other respects, the judgment is affirmed.

The petitioner, Jonathan Pulley, appeals the denial of his petition for post-conviction relief from his Wayne County Circuit Court convictions of aggravated sexual battery and assault, claiming that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm the order of the Circuit Court.
 

The trial court dismissed Plaintiff’s claim for damages under Tennessee Code Annotated § 29-21-108. We affirm

In this appeal as of right, the State challenges the Knox County Criminal Court’s setting aside the jury verdicts of guilty of especially aggravated kidnapping, aggravated burglary, and possession of a firearm with intent to go armed during the commission of a dangerous felony and ordering dismissal of the charges. Because the trial court erred by setting aside the verdicts and dismissing the charges of especially aggravated kidnapping and aggravated burglary, the jury verdicts are reinstated, and the case is remanded to the trial court for sentencing. Although the trial court erred by dismissing the firearms charge on the grounds named in its order, error in the indictment for that offense nevertheless requires a dismissal of those charges. Finally, the defendants’ convictions of aggravated robbery and the sentences that accompany them are affirmed.

After a trial by jury, the defendant was found guilty of the first degree felony murder of his girlfriend’s five-month-old daughter. On appeal, the defendant claims that the trial court’s decision to exclude the testimony of four potential witnesses concerning the defendant’s son’s propensity toward violence violated his constitutional right to present a defense. After reviewing the record, we conclude that the defendant has failed to establish that the testimony of these four witnesses was critical to the defense. In addition, strong societal interests support the exclusion of this type of character evidence when nothing in the record might suggest that the defendant’s son actually committed the crime. Consequently, the trial court’s decision to exclude the testimony of these witnesses did not violate the defendant’s constitutional right to present a defense. The judgment of the trial court is affirmed.

Husband appeals the trial court’s determination that the parties’ residence was marital property; he also appeals the division of the marital property. Finding no error, we affirm.
 

Stephanie Lawson Miller (“Mother”) appeals the Trial Court’s April 26, 2012 order finding and holding her in criminal contempt for violating the parties’ Permanent Parenting Plan. Mother raises issues on appeal regarding whether Stephen Lee Miller (“Father”) proved beyond a reasonable doubt that Mother had violated the Permanent Parenting Plan, whether Mother could be jailed for said contempt, whether the parties’ minor child has a constitutional right to exercise his religious beliefs, and whether the Trial Court erred in failing to consider the testimony of the child. We find and hold that Father did prove beyond a reasonable doubt that Mother violated the Permanent Parenting Plan, that Mother could be jailed for said contempt, that the Trial Court did not err in refusing to consider the child’s testimony about his religious decision making, and that the issue of whether the child has a constitutional right is not properly before this Court. We affirm.

The plaintiff appeals arguing that the trial court erred in setting aside a default judgment and dismissing all claims under the doctrine of res judicata. Based upon the record on appeal, we find no error and affirm the decision of the trial court.
 

CHARLES D. SUSANO, JR., Presiding Judge, dissenting. With all due respect to my colleagues, I believe the conduct, or lack thereof, of Mother has been blown way out of proportion. Certainly, not all of the i’s were properly dotted and not all of the t’s were correctly crossed, but, in the final analysis and way before the date scheduled for the Child’s Baptism, Father had ample opportunity to weigh in on the decision. He failed to stop the Baptism when he could.

The petitioner, Carlos Kennedy, appeals the denial of his petition for post-conviction relief. The petitioner is currently serving an effective sentence of thirty-five years in the Department of Correction following his convictions for rape of a child, attempted rape of a child, assault, and coercion of a witness. 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. Secifically, he contends that trial counsels were ineffective by: (1) failing to consider moving for a change of venue; (2) failing to interview all fact witnesses; (3) failing to file important pre-trial motions; and (4) failing to utilize an expert witness. Following review of the record, we discern no error and affirm the denial of the petition.