APPELLATE COURT OPINIONS

The dispositive jurisdictional issue in this case is whether the underlying juvenile court proceeding was merely a custody action or a part of a dependency and neglect proceeding wherein custody was also at issue. The pleading that was tried in the juvenile court was Father’s Amended Petition for Custody and to Determine Parenting Plan and, in the Alternative, Petition for Dependent and Neglect. Following the trial on the amended petition, the juvenile court judge found the evidence insufficient to prove dependency and neglect; however, the juvenile court awarded custody of the parties’ child to Father on a best interest determination. Mother appealed the judgment of the juvenile court to the circuit court. The circuit court dismissed the appeal on the motion of Father, finding it lacked jurisdiction because the juvenile court did not find the child dependent and neglected. The appeal was then transferred to this court. Although the juvenile court did not find the child dependent and neglected, the juvenile court awarded custody to Father following a trial which was part of a dependency and neglect proceeding. Therefore, as In re D.Y.H., 226 S.W.3d 327 (Tenn. 2007), instructs, the circuit court has jurisdiction to hear Mother’s appeal because the juvenile court’s custody decision arose from and was part of a dependency and neglect proceeding. Accordingly, we reverse and remand this appeal to the circuit court for a de novo hearing.

Defendants appeal from an order of the trial court enjoining them from operating a wrecker service in Davidson County without a license. The trial court found that the ordinances at issue applied to Defendants’ wrecker services and that Defendants violated the provisions of the Metropolitan Code of Laws by their operation of a wrecker service without a license in Davidson County. The trial court also rejected Defendants’ arguments that the ordinances were preempted by federal law and violated the equal protection guarantees of the United States and Tennessee Constitutions. The trial court then enjoined Defendants from operating a wrecker service in Davidson County. We affirm the trial court in all respects.
 

This is a termination of parental rights case focusing on Landen P. (“the Child”), the minor daughter of Kevin P. (“Father”) and Ciera P. (“Mother”). The Child was born in 2007, while the parents were residing in Florida. In 2008, Mother left Father and the Child and moved to Utah. Thereafter, she maintained sporadic contact with the Child only by telephone. Father subsequently moved with the Child to Cleveland, Tennessee in 2009. In 2011, Father’s mother and stepfather, Judy and Todd R., obtained custody of the Child through proceedings in the Bradley County Juvenile Court. Judy and Todd R. filed the instant petition seeking to terminate Mother’s parental rights on August 1, 2011, for the purpose of adopting the Child. Having been arrested in May 2011, Father was incarcerated at the time of trial. Father consented to the adoption, and his parental rights were terminated on February 24, 2012. Following a bench trial, the trial court granted the petition and terminated Mother’s parental rights. The court found, by clear and convincing evidence, that Mother had abandoned the Child by failing to visit and support her during the relevant four-month time period and that termination was in the Child’s best interest. Mother has appealed. We affirm.

The Departmentof Safety, acting pursuant toTennesseeCode Annotated § 39-17-1352(a)(1), revoked Petitioner’s handgun carry permit based upon the Department’s independent determination that Petitioner had been convicted of “a misdemeanor crime of domestic violence” as defined by 18 U.S.C. § 921(a)(33). The revocation arises out of an incident in which Petitioner was charged with two counts of aggravated assault, one count that pertained to his ex-wife and one count that pertained to her male companion. Petitioner subsequently pled guilty to one count of simple assault under Tennessee Code Annotated § 39-13-101. When Petitioner received notice that his handgun permit had been administratively revoked, he filed an appeal in the general sessions court, which reversed the Department’s decision and ordered reinstatement of Petitioner’s permit. The Department then appealed to the circuit court, which also ordered reinstatement of the handgun permit. This appeal followed. A “misdemeanor crime of domestic violence,” for purposes of 18 U.S.C. § 922(g)(9), requires a use of force and a domestic relationship. In the underlying criminal case, Petitioner was charged with assaulting two people, Petitioner’s ex-wife and her male friend. Petitioner pled guilty to only one count of misdemeanor assault and the record does not establish whether Petitioner pled guilty to assaulting his ex-wife or her male companion. A “misdemeanor crime of domestic violence” includes an offense “committed by” a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime and, pursuant to United States v. Hayes, 555 U.S. 415 (2009), the victim’s domestic relationship with the defendant must be established beyond a reasonable doubt for the offense to constitute a crime of domestic violence under 18 U.S.C. § 922(g)(9). The record in this case does not establish that the victim of the count of simple assault to which Petitioner pled guilty was his ex-wife. Therefore, the record does not support the Department’s determination that Petitioner was convicted of a misdemeanor crime of domestic violence for purposes of 18 U.S.C. § 922(g)(9). Accordingly, we affirm.

A jury convicted the defendant of premeditated first degree murder for shooting and killing a police officer. As the penalty phase of the trial began, the defendant refused to allow his lawyers to present mental health mitigation evidence. After questioning the defendant about his decision, the trial court directed two mental health experts to evaluate the defendant’s mental competency. After the evaluation, the mental health experts testified that they could not render an opinion as to the defendant’s competency because the defendant had refused to cooperate. The trial court ruled that the defendant had failed to overcome the presumption of competency and was therefore competent to waive the presentation of expert mental health testimony. The State proved the existence of two aggravating circumstances pursuant to Tennessee Code Annotated sections 39-13-204 (i)(2) and (9) (2006). The defendant presented testimony from family and  friends. The jury sentenced the defendant to death. The Court of Criminal Appeals affirmed the defendant’s conviction and sentence. State v. Johnson, No. E2010-00172-CCA-R3-DD, 2012 WL 690218 (Tenn. Crim. App. Mar. 5, 2012). We hold that a mentally competent defendant may waive the presentation of mitigation evidence during the penalty phase of a capital trial. We further hold that (1) the evidence does not preponderate against the trial court’s ruling that the defendant was mentally competent to waive the presentation of mitigation evidence; (2) the trial court did not err in overruling the defendant’s motion for a mistrial based on the State’s improper reference to abortion during its closing argument; (3) the defendant’s challenge to the constitutionality of Tennessee’s death penalty is without merit; and (4) based on our review of the death sentence, as required by Tennessee Code Annotated section 39-13-206(c) (2010), the death sentence was not imposed in an arbitrary fashion; the evidence supports the jury’s finding of statutory aggravating circumstances; the evidence supports the jury’s finding that the aggravating circumstances outweigh any mitigating circumstances; and the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. We affirm the defendant’s first degree murder conviction and sentence of death.

This appeal arises out of a breach of contract action. Following the presentation of the plaintiffs’ proof, the court granted defendants’ motion to dismiss. We vacate the decision of the trial court and remand the case for findings of fact required by Tenn. R. Civ. P. 41.02(2) and 52.

We granted this appeal to determine whether the trial court erred by denying the defendant’s motion to suppress his statements to the police on the grounds that they were elicited in violation of his constitutional right to counsel and were involuntary. We have determined that the defendant did not unequivocally request counsel and therefore did not invoke his constitutional right to counsel. Nevertheless, we have also determined that the State failed to prove by a preponderance of the evidence that the defendant waived the rights enumerated in Miranda v. Arizona, 384 U.S. 436 (1966). Thus, we hold that the defendant’s statements were erroneously admitted into evidence, but the physical evidence discovered as a result of his statements was properly admitted because the totality of the circumstances shows that the defendant’s statements were voluntary and not coerced. We also hold that the State failed to establish that the erroneous admission of the defendant’s statements was harmless beyond a reasonable doubt. Accordingly, the defendant’s convictions of second degree murder and abuse of a corpse are vacated, and this case is remanded for further proceedings.

This appeal involves the child support obligation of a man who is not the biological father of the children at issue. The wife gave birth to two children during the parties’ marriage. The husband filed for divorce, and subsequent DNA tests confirmed that the husband was not the father of either child. The trial court held that the husband had no legal obligation to pay child support. The wife now appeals, arguing that the husband should be required to pay child support because he is the children’s “legal father.” Discerning no error, we affirm.

Police utilized a confidential informant to arrange a drug buy from a co-defendant. At the scheduled time and location, the co-defendant arrived in his truck with the defendant and another passenger. A police takedown resulted in the arrest of the three men. A consensual search of the truck yielded approximately 153 grams of cocaine and 8.6 grams of marijuana in close proximity to where the defendant had been seated. A subsequent consensual search of the co-defendant’s residence, located several miles away, yielded an additional 293.5 grams of cocaine and various items of drug paraphernalia. The State consolidated the weight of the cocaine and charged the defendant with possession with intent to sell 300 grams or more of cocaine, a Class A felony; possession of marijuana; and possession of drug paraphernalia. The jury convicted the defendant of possession with intent to sell 300 grams or more of cocaine and possession of drug paraphernalia. We hold that although the evidence was sufficient to support a finding that the defendant constructively possessed the cocaine in the co-defendant’s truck, the evidence was insufficient to support a finding that he constructively possessed either the cocaine or the drug paraphernalia in the co-defendant’s residence. Accordingly, we reduce the conviction for possession with intent to sell 300 grams or more of cocaine to possession with intent to sell 26 to 299 grams of cocaine, a Class B felony, and we vacate the conviction for possession of drug paraphernalia. The case is remanded to the trial court for re-sentencing on the reduced offense.

A Shelby County Criminal Court Jury convicted the appellant, Kalvin Hardaway, of reckless aggravated assault and initiating a false report, Class D felonies. After a sentencing hearing, the trial court sentenced him as a Range III, career offender to twelve years for each conviction to be served concurrently. On appeal, the appellant contends that the evidence is insufficient to support the convictions and that the trial court erred by refusing to allow him to question the victim about the victim’s drug use. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

This appeal involves a constitutional challenge to T.C.A. 29-26-121, which requires notice to defendants prior to the commencement of a health care liability lawsuit. The plaintiff filed a lawsuit asserting health care liability against the defendant health care providers within the applicable statute of limitations, but without providing the defendants with prior notice as required under Section 29-26-121. In ruling on the defendants’ motion for summary judgment, the trial court held that Section 29-26-121 conflicted with Rule 3 of the Tennessee Rules of Civil Procedure. On this basis, it held that the statute infringed upon the authority of the judicial branch to enact rules governing the procedures for commencing a lawsuit, and thus violated the separation of powers clause of the Tennessee Constitution. The defendant health care providers were granted permission for this interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. We reverse, holding that pre-lawsuit notice requirement in Section 29-26-121 does not contravene the separation of powers clause of the Tennessee Constitution.

Appellant, Henry Lee Jones, appeals from his convictions of two counts of premeditated first degree murder and two counts of felony murder and his sentences of death resulting from the August 2003 deaths of Clarence and Lillian James. At the conclusion of the penalty phase, the jury unanimously found the presence of four statutory aggravating circumstances relating to the murder of Mrs. James: (1) Appellant was previously convicted of two or more felonies involving the use of violence; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of Appellant or another; and (4) the murder was knowingly committed while Appellant had a substantial role in committing any robbery. See T.C.A. § 39-13-204(i)(2), (5), (6), (7). The jury unanimously found the presence of the same four statutory aggravating circumstances with regard to the murder of Mr. James, as well as an additional statutory aggravating circumstance, that the victim was 70 years of age or older. See id. at (i)(14). The jury determined that these aggravating circumstances outweighed any mitigating circumstances and imposed sentences of death. On appeal, the following issues are presented for our review: (1) whether the trial court erred in admitting evidence of a subsequent murder; (2) whether the evidence is sufficient to support the convictions; (3) whether the trial court erred in admitting photographs of the victims; and (4) whether Tennessee’s sentencing statute for first degree murder is unconstitutional. After a review of the record and the applicable law, we affirm Appellant’s convictions and sentences of death and remand this matter to the trial court for entry of a single judgment of conviction for first degree murder with regard to each victim.

I respectfully dissent from the portion of the majority opinion in this case concluding that the trial court properly admitted the murder of Carlos Perez (the Florida murder) pursuant to Rule 404(b) of the Tennessee Rules of Evidence. In my view, the State failed to show that the method used in these murders was so unique as to constitute a signature that would give rise to the inference of identity. Based on the following authority and analysis, I would have concluded that the admission of the Florida murder was unfairly prejudicial and reversed the judgment of conviction and remanded for a new trial.

The Petitioner, Vincent Lanier, appeals the Shelby County Criminal Court’s denial of his petition for writ of habeas corpus. The Petitioner was indicted for rape but entered a guilty plea to statutory rape. On appeal, the Petitioner argues that his judgment is void because (1) he entered a guilty plea to statutory rape, which is not a lesser included offense of the charged offense of rape, and his indictment was never amended from rape to statutory rape, and (2) trial counsel and the trial court failed to advise him that he would have to comply with the registration requirements of Tennessee’s sexual offender registration act because of his guilty plea to statutory rape. See T.C.A. § 39-13-506(d)(2)(B) (stating that “[i]n addition to the punishment provided for a person who commits statutory rape for the first time, the trial judge may order, after taking into account the facts and circumstances surrounding the offense, including the offense for which the person was originally charged and whether the conviction was the result of a plea bargain agreement, that the person be required to register as a sexual offender pursuant to title 40, chapter 39, part 2”). Upon review, we affirm the habeas corpus court’s summary dismissal of the petition.

The petitioner, Justin Diana, pled guilty in the Shelby County Criminal Court to one count of attempted solicitation of sexual exploitation of a minor by electronic means and three counts of statutory rape. He received a total effective sentence of four years. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel were ineffective and that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

The Defendant, Michael Glen Walsh, appeals from his convictions by a Sevier County Circuit Court jury for driving under the influence (DUI), second offense, a Class A misdemeanor, violating the implied consent law while his driver’s license was revoked for a previous DUI conviction, a Class A misdemeanor, and driving with a revoked license, a Class B misdemeanor. See T.C.A. §§ 55-10-401, 55 10-406, and 55-50-504 (2012). He received an eleven-month, twenty-nine-day sentence with 150 days to serve for each of the DUI and the implied consent violation convictions and received a six-month sentence, suspended except for forty-eight hours, for the revoked license conviction, all to be served concurrently. On appeal, the Defendant contends (1) that the evidence is insufficient to support his DUI and implied consent violation convictions and (2) that the trial court erred in sentencing him to serve 150 days. We affirm the judgments of the trial court.

This is a termination of parental rights case. Mother appeals the trial court’s termination of her parental rights on several grounds, including abandonment by willful failure to visit pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(i). We conclude that the ground of abandonment by willful failure to visit is met by clear and convincing evidence in the record and that there is also clear and convincing evidence that termination of Mother’s parental rights is in the child’s best interest. Affirmed and remanded.

Marvin Lee Keeling (“the Defendant”) was convicted by a jury of one count of kidnapping, two counts of aggravated burglary, one count of assault causing bodily injury, and one count of assault by offensive touching. After a hearing, the trial court denied judicial diversion and sentenced the Defendant as a Range I offender to five years for the kidnapping conviction, five years for each of the aggravated burglary convictions, eleven months and twenty-nine days for the assault causing bodily injury conviction, and six months for the assault by offensive touching conviction, all to be served concurrently, for an effective sentence of five years. The trial court ordered the Defendant to serve one year of his sentence confined in the county jail with five years of probation. In this direct appeal, the Defendant contends that (1) the evidence is not sufficient to support his kidnapping conviction; (2) the trial court erred in denying judicial diversion; and (3) the trial court erred in denying full probation. Upon our thorough review of the record and relevant authorities, we affirm the trial court’s judgments.

The petitioner, Tommie L. Hill, Jr., appeals the denial of his petition for post-conviction relief, arguing that he was denied the effective assistance of counsel at trial. Following our review, we affirm the judgment of the post-conviction court denying the petition.

Defendant, Wade Allen Willis, was indicted by the Maury County Grand Jury for the offenses of driving under the influence of intoxicants per se (DUI), violation of the registration law, violation of the financial responsibility law, and for failure to maintain control of his vehicle. The charges were the result of a traffic stop of Defendant by a state trooper of the Tennessee Highway Patrol. Defendant filed a motion to suppress evidence obtained as a result of his arrest, solely on the basis that his arrest "was without a warrant and without probable cause." Defendant did not assert that the officer lacked reasonable suspicion to initiate a stop of Defendant. Following a hearing on the motion to suppress, the trial court took the matter under advisement. The trial court subsequently entered a written order granting Defendant’s motion to suppress all evidence obtained "following the initial detention and subsequent arrest." The State has appealed, following a nolle prosequi of the indictment. Following a thorough review we reverse the judgment of the trial court, reinstate the charges, and remand for further proceedings.

The Juvenile Court terminated the parental rights of the mother of a child on the ground of severe abuse; the court also found that termination was in the best interest of the child. Mother appeals, contending that the evidence is not clear and convincing that termination of her rights is in the child’s best interest. We affirm the decision of the trial court.

In this interlocutory appeal, Plaintiffs challenge the constitutionality of Tennessee Code Annotated section 29-26-121, which requires a medical malpractice claimant to provide certain notice sixty days prior to filing suit. We conclude that Tennessee Code Annotated section 29-26-121 is not an unconstitutional infringement upon the courts’ rule-making authority, that it is not preempted by HIPAA, and that it does not violate the equal protection and due process provisions of state and federal law. Affirmed and Remanded.

Father appeals the termination of his parental rights to his four biological children. The trial court terminated his parental rights on the grounds of abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions. Finding that at least two of the grounds for termination are supported by clear and convincing evidence and that the Department of Children’s Services exerted reasonable efforts to reunite the family, we affirm the trial court.

The Petitioner, Michael T. Braxton, appeals the Circuit Court of Lauderdale County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

The Petitioner, Craig Beene, appeals the Dickson County Circuit Court’s denial of his petition for a writ of error coram nobis regarding his convictions for attempt to commit first degree murder, especially aggravated kidnapping, and aggravated assault, for which he is serving an effective seventeen-year sentence. The Petitioner contends that the trial court erred by denying him relief. We affirm the judgment of the trial court.