APPELLATE COURT OPINIONS

In this post-divorce case, the issues are twofold: whether the trial court erred in awarding Mary Nelle Sprague (“Mother”) a judgment against her former spouse, Andrew Douglas Sprague (“Father”), in the amount of $5,604.65 for uncovered medical expenses pursuant to the terms of the parties’ parenting plan; and whether the trial court erred in the process of holding Father in criminal contempt of court. We modify the medical expense award by decreasing it to $2,124.32, the amount claimed by Mother and the amount established by the proof. Further, we reverse the criminal contempt finding because Father was not provided adequate notice of the criminal contempt charges as required by Tenn. R. Crim. P. 42(b).

Appellant, Sean M. Leifer, was indicted for first degree felony murder and aggravated child abuse. A jury convicted him of reckless homicide and aggravated child abuse, and the trial court imposed concurrent sentences of four years and sixteen years, respectively. Appellant now challenges the sufficiency of the convicting evidence and the trial court’s rulings with regard to the State’s expert witness. Following our review, we affirm the judgments of the trial court.

A man who was injured in a head-on collision filed suit against the woman driving the car that hit him and the company that owned the car. The defendants filed a motion for summary judgment, accompanied by affidavits indicating that the woman unexpectedly blacked out just prior to the collision, probably as a result of her diabetic condition. After examining the affidavits of medical experts for both the plaintiff and the defendants, the trial court granted summary judgment to the defendants, holding that the driver’s loss of consciousness was unforeseeable. The plaintiff appeals the summary judgment. We affirm the trial court.
 

Property owners, Bryant Coley, Sr., his son, Bryant Coley, Jr., and their wives, filed a declaratory judgment action against fiduciaries, Mike Di Sorbo and Michelle Di Sorbo, after the Di Sorbos refused the Coleys access to a road that crossed their ward’s property. The Coleys requested that the court declare the road a public road and enjoin the interference of its use. Following a bench trial, the court found that the “route” in question was not a dedicated public road. Consequently, it dismissed the complaint. The Coleys appeal. We affirm.

The defendant, Marquon Lanorris Green, was convicted by a Madison County Circuit Court jury of aggravated kidnapping, a Class B felony; aggravated rape, a Class A felony; and aggravated robbery, a Class B felony. He was sentenced to twenty years on the aggravated kidnapping and aggravated rape convictions and ten years on the aggravated robbery conviction, to be served consecutively to each other and a prior ten-year sentence. On appeal, the defendant challenges the sufficiency of the convicting evidence and the trial court’s imposition of consecutive sentences. After review, we affirm the judgments of the trial court.

Mother and Father were divorced in 2010, and Father filed a petition for modification of the parenting plan seven months later in an effort to reduce Mother’s parenting time. The trial courtdetermined Fatherdid notshow a materialchange of circumstances and denied Father’s petition. Father appealed,alleging the trial court erred in four different ways: (1) concluding Father had not proved a material change of circumstances; (2) precluding Father from introducing evidence of Mother’s mental health prior to the divorce; (3) allowing the parenting plan to stay intact such that Mother is able to return to court to prove her mental stability and seek an increase in her parenting time; and (4) not awarding Father his attorney’s fees. We affirm the trial court’s judgment in all respects.
 

The Defendant, Clark Beauregard Waterford, III, was indicted for first degree premeditated murder. Following a jury trial, the Defendant was convicted of the lesser-included offense of second degree murder and sentenced to forty years as a Range II, multiple offender. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction for second degree murder; (2) that the trial court erred in deciding that the Defendant’s two prior convictions for aggravated assault would have been admissible for impeachment purposes if the Defendant had decided to testify at trial; and (3) that the trial court erred by imposing the maximum sentence. Following our review, we affirm the judgment of the trial court.
 

The petitioner, Bobby Jackson, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel at trial. Following our review, we affirm the post-conviction court’s denial of the petition.

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.
 

In 2007, a Sevier County jury convicted the Defendant, Andrew Reginald Mackinnon, of violating the implied consent law. The Defendant appealed, and this Court vacated the judgment, remanding the case for the trial court to determine whether the Defendant violated the implied consent law. State v. Andrew Reginald MacKinnon, No. E2009-00093-CCA-R3-CD, 2011 WL 1460167 (Tenn. Crim. App., at Knoxville, Mar. 30, 2011), no Tenn. R. App. P. 11 application filed. On remand, the Defendant filed a motion to dismiss and a motion to suppress, both of which the trial court denied after a hearing. After a non-jury trial, the trial court determined that the Defendant had violated the implied consent law. The trial court ordered the Defendant’s license be revoked for a period of one year. On appeal, the Defendant contends that the trial court erred when it:(1) denied his motion to dismiss; and (2) denied his motion to suppress. After a thorough review of the record, the briefs, and relevant authorities, we affirm the trial court’s judgment.

This case involves the application of the statute of limitations to an intervening personal injury complaint filed by a bankruptcy trustee after the defendants asserted that the original plaintiff, the debtor in the bankruptcy proceeding, lacked standing to bring the claim. Once the bankruptcy trustee became aware of the claim, he filed a motion for intervention, or in the alternative, for substitution pursuant to Rule 17.01 of the Tennessee Rules of Civil Procedure. The trial court granted the trustee’s motion and the trustee later filed an intervening complaint. The trial court, however, later dismissed the case, reasoning that because the first complaint was filed by a party without standing, the original complaint was a nullity. Under this theory, the trial court concluded that the action was commenced upon the filing of the trustee’s intervening complaint, which was undisputedly outside the applicable statute of limitations. Having determined that the plaintiff’s original complaint was not a nullity, we conclude that the trustee’s intervening complaint relates back to the original complaint and, thus, was filed within the applicable statute of limitations. Accordingly, we reverse and remand.

Appellant, Tyrone Bohanna, was indicted by the Shelby County Grand Jury in a multi-count indictment with co-defendant Brandon Harris in March of 2010. Appellant was indicted for especially aggravated robbery, attempted second degree murder, two counts of employing a firearm during a felony, aggravated burglary, and three counts of aggravated assault. Following a lengthy jury trial, Appellant was convicted of especially aggravated robbery, reckless endangerment as a lesser included offense of attempted second degree murder, one count of employing a firearm during the commission of a felony, and three counts of aggravated assault. Appellant was acquitted of one of the firearms charges. At a separate sentencing hearing, the trial court determined that Appellant was a career offender. As a result, the trial court imposed the maximum sentence for each offense and ordered consecutive sentencing after finding that Appellant had an extensive criminal history and was a dangerous offender. Appellant received a total effective sentence of 120 years, eleven months, and twenty-nine days. Appellant filed a timely motion for new trial which the trial court denied. On appeal, Appellant seeks resolution of the following issues: (1) the sufficiency of the evidence; (2) the admission of evidence pursuant to the forfeiture by wrongdoing provision of Tennessee Rule of Evidence 804(b)(6); (3) the admission of recordings of telephone calls made by Appellant from jail; (4) the determination by the trial court to hold court on Sunday; (5) the denial of Appellant’s motions for mistrial; (6) the admission of the testimony of Donovan Hensley; and (7) the imposition of consecutive sentencing. After a thorough review of the record, we conclude: (1) the evidence was sufficient to support the convictions; (2) the trial court did not abuse its discretion in admitting evidence including Appellant’s telephone calls, hearsay statements of Antonio Hawkins, and testimony from Donovan Hensley; (3) the trial court did not abuse its discretion in denying a mistrial; and (4) the trial court did not abuse its discretion in sentencing Appellant. Accordingly, the judgments of the trial court are affirmed.

Jeffrey Booth (“the Petitioner”) was convicted by a jury of two counts of especially aggravated kidnapping, one count of aggravated robbery, and one count of aggravated assault. Pursuant to a sentencing agreement, the trial court sentenced the Petitioner to an effective sentence of twenty years’ incarceration. On appeal, this Court merged the two especially aggravated kidnapping convictions. The Petitioner subsequently filed for postconviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that the post-conviction court should have applied State v. White, 362 S.W.3d 559 (Tenn. 2012), retroactively. He also contends that he received ineffective assistance of counsel. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

This appeal arises from a post-divorce petition to modify the father’s child support obligation as set in 2000 under a previous version of the child support guidelines. The dispositive issue is whether there is a “Significant Variance” in the father’s income as required by Department of Human Services Rule 1240-2-4-.05(2)(b)(1) to allow a modification. The trial court found no significant variance in the father’s income; nevertheless, it modified his child support obligation, setting it at the presumptive amount as calculated under the current child support guidelines and using the parties’ current income. We have determined the trial court’s finding of no significant variance was based upon a mathematical error, and we find there is a significant variance entitling the father to a modification of his child support obligation. Accordingly, we affirm the modification of the father’s support but on different grounds than those relied upon by the trial court.

This is a termination of parental rights case involving two minor children, Victoria G. and Ethan G. (“the Children”). The Children were born during the marriage of David G. (“Father”) and Rachel M. (“Mother”). When Father and Mother divorced in 2004, Mother was awarded primary custody of the Children. In 2005, Mother suffered a recurrence of cancer. She and the Children subsequently moved in with her sister, Amanda M., and her sister’s husband, Paul M. When Mother died on October 6, 2005, Amanda M. obtained custody of the Children the following day. Father did not seek custody of the Children until April 2006. The parties engaged in protracted litigation, during which Father was allowed varying types of visitation. In September 2010, Father was granted progressively expanding visitation with the Children, designed toward increasing co-parenting in frequency and consistency over time. The visits did not go well, however, and the Children eventually refused to go with Father. The last attempted exchange, occurring on September 9, 2011, resulted in an incident wherein Father was arrested for assault. Father did not seek visitation with the Children after that date. Paul M. filed a petition seeking to terminate Father’s parental rights on January 26, 2012, based upon the statutory ground of abandonment by willful failure to visit and support. Following a bench trial, the trial court granted the petition after finding clear and convincing evidence that Father had willfully failed to visit the Children for at least four months preceding the filing of the petition, and upon determining that termination was in the Children’s best interest. Father appeals. We affirm.

Unmarried Father and Mother of infant child filed petitions to establish initial custody, calculate parenting time, set child support, and determine residential sharing schedule. Father sought to have the child bear his surname. The trial court entered a parenting plan and denied Father’s request to change the child’s surname. Father appeals and assigns as error certain parenting plan provisions, the trial court’s award to Mother of her attorney fees, and the trial court’s decision not to change the child’s surname. Mother appeals the trial court’s calculation of the number of days of parenting time for purposes of determining child support. Finding that the court miscalculated the number of days of parenting time, we remand for a redetermination of child support. We also remand the attorney fee award for reconsideration. In all other respects, we affirm the trial court.

In 2004, a Johnson County jury convicted the Petitioner, Robert Otis Simerly, of first degree felony murder, and the jury sentenced him to life in prison with the possibility of parole. This Court affirmed his conviction on appeal. State v. Robert Simerly, No. E2002-02626-CCA-R3-CD, 2004 WL 443294, at *1 (Tenn. Crim. App., at Knoxville, Mar 11, 2004), perm. app. denied (Tenn. Oct. 4, 2004). The Petitioner filed a petition for post-conviction relief and a motion for recusal, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends that the post-conviction court erred when it denied the Petitioner’s motion for recusal because, during the trial, the judge improperly reminded the prosecutor to establish venue. The State counters first that the appeal was untimely filed. The State further avers that the Petitioner is not entitled to relief based upon the trial court’s failure to recuse itself. After a thorough review of the record and applicable authorities, we conclude that, pursuant to the circumstances of this case, the Petitioner’s petition should not be dismissed based on his failure to timely file a notice of appeal. We further conclude that he is not entitled to post-conviction relief based upon the merits of his claim. The post-conviction court’s judgment is, therefore, affirmed.

The main issue in this case is whether Rutherford County provided adequate notice, under the Open Meetings Act, concerning a planning commission meeting to vote on the site plan for a mosque. We have concluded that the trial court erred in finding the notice provided to be inadequate under the Open Meetings Act. In all other respects, we affirm the decision of the trial court.

After the trial court entered a final decree of divorce, the wife filed a motion to alter or amend, seeking a modification of the division of marital property. The trial court granted the motion to alter or amend, stating that the court was operating under a misconception concerning the wife’s position at trial, which rendered the division of marital property inequitable. The court awarded an asset previously awarded to the husband to the wife instead. Husband appeals. We affirm.

I concur in the majority opinion’s conclusion that the trial court did not err in refusing to hear the Defendant’s suppression motion. I respectfully dissent, though, because I believe the trial court did not have sufficient evidence to support the conclusions regarding both full confinement and consecutive sentencing. I also believe the principles and purposes of the Sentencing Act were not best served by the sentence imposed.

The defendant, Ruby W. Graham, appeals her White County Circuit Court jury convictions of attempt to possess with the intent to sell morphine, oxycodone, and marijuana, challenging the sufficiency of the convicting evidence and the total fine imposed. Discerning no error, we affirm.

The father of one child appeals the trial court’s finding of ten counts of criminal contempt for failing to pay ten weekly child support payments and the imposition of consecutive sentences of ten days for each count for a total sentence of 100 days in jail. Petitioner introduced little evidence other than proof that the father had not paid child support; the father defended the petition insisting he did not have the ability to pay support. Medical records introduced into evidence, along with the testimony of the father and his optometrist, established that the father suffered from an autoimmune medical condition that substantially impairs his vision and prevents him from working in bright light, including sunlight, and from working in a hot environment. Additionally, the father has a tenth grade education and is a convicted felon, facts which further impair his employability. Considering the evidence in the light most favorable to the prosecution, we are unable to conclude that a trier of fact could have found beyond a reasonable doubt that the father had the ability to pay and that his failure to pay support was willful. Accordingly, his conviction of ten counts of contempt for willfully failing to pay child support is reversed.
 

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner, Kevin T. Saulter, appeals the trial court’s dismissal of his petition for writ of error coram nobis and a motion to reconsider the denial of his petition for post-conviction relief. Upon a review of the record, we are persuaded that the lower court was correct that the Petitioner is not entitled to relief. This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed