APPELLATE COURT OPINIONS

Following a jury trial, Petitioner, Damien Clark, was convicted of second degree murder. This court affirmed the judgment of conviction in State v. Damien Clark, W2007-00651-CCA-R3-CD, 2009 WL 890886 (Tenn. Crim. App. April 1, 2009), perm. app. denied (Tenn. Aug. 17, 2009). Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the petition was dismissed. Petitioner appeals, asserting that he is entitled to post-conviction relief because his trial counsel rendered ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

The Defendant, Jim George Conaser, contends (1) that the evidence presented at trial was insufficient to support his conviction for harassment and (2) that the trial court’s imposition of consecutive sentencing was improper. After a review of the record and the applicable authorities, we conclude that the evidence is sufficient to support the Defendant’s harassment conviction and that the trial court did not abuse its discretion in ordering the sentence from that conviction to run consecutively to a prior, unserved sentence.

Following a jury trial, Defendant, Neil Vader, was convicted of driving in violation of a motor vehicle habitual offender (MVHO) order, driving under the influence of an intoxicant (DUI), violation of the implied consent law, and driving on a revoked driver’s license. Defendant waived a jury trial to determine the number of his prior DUI convictions. The trial court found that Defendant had three prior DUI convictions and was guilty of DUI fourth offense. The trial court sentenced Defendant to serve one year and nine months for counts one and two and eleven months and twenty nine days for count three. All of Defendant’s sentences were ordered to run consecutively. The trial court merged count four, driving on a revoked driver’s license, with violation of a MVHO order. On appeal, Defendant raises the following issues: (1) the trial court erred in excluding testimony offered as extrinsic evidence of a prior inconsistent statement to impeach a witness; (2) the prosecuting attorney engaged in misconduct during closing arguments; and (3) the cumulative effect of the trial court’s evidentiary error and prosecutorial misconduct constitutes reversible error. After thorough review, we affirm the judgments of the trial court.

This appeal involves a post-divorce order of protection. Several years after the parties’ divorce in another state, the appellant mother obtained an order of protection against the appellee father in a Tennessee general sessions court, to restrict his contact with her and the parties’ minor child. The parties’ out-of-state divorce decree was enrolled in the Tennessee chancery court, where the mother also sought a continued order of protection, contempt relief, and modification of the parties’ parenting arrangement. All matters, including the general sessions order of protection, were consolidated in the Tennessee chancery court. The chancery court held a hearing on the order of protection. It declined to extend the order of protection and dissolved it. All other matters before the chancery court remained pending. The mother filed a notice of appeal to this Court. We hold that the dissolution of the order of protection, with other matters still pending, is not a final and appealable judgment. We dismiss the appeal for lack of appellate jurisdiction, and remand to the chancery court.

The defendant, Lewis Green, appeals the trial court’s decision to deny his request for alternative sentencing and judicial diversion. The defendant pled guilty to seven counts of possession of cocaine with intent to sell and one count of possession of marijuana with intent sell. He received an effective five-year sentence for the convictions. Following a hearing, the trial court ordered that the sentences be served in incarceration and denied the defendant’s request for judicial diversion. Following review of the record, we affirm the sentencing decisions of the trial court.

The Defendant, John Allen Hessmer, appeals pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court denied the Defendant’s request to proceed pro se during his pretrial hearings on the charges of aggravated burglary, arson of a structure, arson of personal property or real estate, harassment, and stalking. We reverse the judgment of the trial court and remand the case to the Criminal Court for Wilson County

A Davidson County Grand Jury returned an indictment against Defendant, DeShawn Lamar Baker, charging him with solicitation of aggravated robbery, conspiracy to commit aggravated robbery, aggravated robbery, and felony possession of a handgun. Following a jury trial, Defendant was convicted of conspiracy to commit aggravated robbery, aggravated robbery, and felony possession of a handgun. Defendant was sentenced to ten years for the conspiracy charge, eighteen years for aggravated robbery, and four years for the handgun charge to be served concurrently for an effective eighteen-year sentence in the Department of Correction as a Range II offender. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; and (2) that the State commited prosecutorial misconduct by failing to timely disclose the discovery of his wallet containing the victim’s driver’s license and that John Peoples would be called as a witness at trial. After a thorough review, we affirm the judgments of the trial court.

Douglass Leon Lyle (“the Defendant”) was convicted by a jury of two counts of aggravated sexual battery. After a hearing, the trial court sentenced the Defendant to twelve years for each offense, to be served concurrently in the Tennessee Department of Correction. In this appeal as of right, the Defendant raises the following issues: (1) the State’s election of offenses was ineffective; (2) the trial court should have merged the two convictions; (3) the trial court erred in its ruling on a Tennessee Rule of Evidence 412 motion; (4) the jury charge was erroneous; and (5) his sentences are excessive. We hold that the State’s election of offenses was ineffective as to Count 2, and we reverse that conviction and remand for further proceedings. We affirm the trial court’s judgment of conviction and sentence as to Count 1.

Defendant, Deangelo Thompson, appeals from his conviction in the Shelby County Criminal Court for reckless aggravated assault as a lesser-included offense of aggravated assault. Defendant was sentenced by the trial court as a Range II multiple offender to five years incarceration. In this direct appeal, Defendant asserts that the evidence at trial was insufficient to support his conviction; that the trial court erred by sentencing him to five years in confinement for his conviction; and that certain comments and questions by the trial court constitute plain error. Finding no error, we affirm the judgment of the trial court.

A Montgomery County Circuit Court Jury convicted the appellant of the felony murder and attempted aggravated robbery of the victim, George Miller, Jr. The trial court imposed a total effective sentence of life imprisonment in the Tennessee Department of Correction with the possibility of parole. On appeal, the appellant challenges the trial court’s denial of the appellant’s motions to suppress the results of a buccal swab and testimony regarding DNA test results. He also contests the sufficiency of the evidence supporting his convictions. Upon review, we affirm the judgments of the trial court.

This appeal involves a claim for interest on inheritance and estate tax refunds. In 2002, the decedent’s estate filed a Tennessee inheritance tax return and paid an estimated amount of taxes due. Over the next several years, the estate was embroiled in litigation; the litigation expenses diminished the size of the estate. Once the litigation concluded, the estate became entitled to more deductions on its inheritance tax return. To obtain the benefit of the deductions, the estate filed two amended Tennessee inheritance tax returns, one in 2009 and one in 2010, claiming that it was entitled to substantial tax refunds based on its overpayment of inheritance and estate taxes in 2002. The defendant Commissioner of the Tennessee Department of Revenue paid the refunds claimed in the estate’s amended returns, plus a pittance of interest on the refunds. The estate filed this lawsuit against the commissioner, claiming that it was entitled to additional interest on the inheritance and estate tax refunds under the applicable law. The parties filed cross-motions for summary judgment; each agreed that the facts are undisputed and each claimed that it was entitled to judgment as a matter of law. The trial court granted summary judgment in favor of the commissioner. The estate now appeals. We affirm the decision of the trial court.
 

The Petitioner, Charles W. Elsea, Jr., appeals the trial court’s denial of his motion to reopen his post-conviction proceedings. However, because the Petitioner failed to comply with the requirements in Tennessee Supreme Court Rule 28 section 10 for seeking discretionary review of the denial of his motion, this court has no jurisdiction in this case. Accordingly, the appeal is dismissed.

Leslie Dwight Coffey (“Husband”) filed this action for divorce against his spouse, Paula Sue Coffey (“Wife”). During the course of the proceedings, Husband was held in contempt on no less than four separate occasions. The contempt findings were sometimes related to some aspect of his refusal to pay child support. He was also found guilty of contemptuous conduct related to other matters. Each time, his sentence was suspended. Eventually, the suspended time amounted to a total of 50 days in jail. After over ten years of litigation, Wife filed two separate petitions asking that Husband show cause why he should not be held in criminal contempt. On the second petition, the court found Husband in criminal contempt, revoked the suspensions of the previously-imposed sentences and imposed a five day sentence for the new contempt. The court also awarded Wife $10,000 in attorney’s fees in a separate order entered the morning after Wife’s counsel filed an affidavit claiming over $20,000 in fees and expenses. Husband appeals. We affirm that part of the judgment holding Husband in criminal contempt and ordering him to serve a total of 55 days, which figure includes the previously-suspended sentences. We vacate that part of the judgment awarding Wife $10,000 in attorney’s fees and remand for a hearing to allow Husband an opportunity to challenge the fees and expenses claimed by Wife’s counsel.

The defendant was convicted of possessing more than 0.5 grams of cocaine with intent to sell or deliver, a Class B felony. The trial court sentenced the defendant to fourteen years as a Range II, multiple offender. On appeal, the defendant claims that the trial court erred by denying his motion to suppress cocaine that was seized by police after they searched his person. We conclude that the defendant waived this argument by failing to include it in his motion for new trial. The defendant also claims that the State violated Batson v. Kentucky, 476 U.S. 79 (1986), by using two of its peremptory strikes to remove two African American potential jurors. We conclude that these potential jurors were removed for legitimate, nondiscriminatory reasons. Finally, the defendant claims that the trial court erred by allowing a felony drug conviction that was more than ten years old into evidence after the defendant denied that he sold drugs on the stand. We agree, but we conclude that the error was harmless. We affirm the judgments of the trial court accordingly.

Dale Keith Larkin (“the Defendant”) was convicted by a jury of first degree premeditated murder and one count of insurance fraud. The trial court sentenced the Defendant to life imprisonment for the murder conviction and to a concurrent term of eight years for the fraud conviction. In this direct appeal, the Defendant raises the following issues: (1) the trial court erred in refusing to sequester the jury; (2) the trial court erred in allowing the Defendant’s expert witness to testify for the State; (3) the trial court erred in admitting autopsy photographs and some of the victim’s bones into evidence (4) the trial court improperly limited the Defendant’s right to cross-examine a State’s witness; (5) the prosecutor engaged in misconduct during closing argument; (6) the evidence is not sufficient to support his convictions; (7) the trial court failed to discharge its duty as thirteenth juror; and (8) the cumulative effect of these errors violated the Defendant’s rights to a fair trial. Upon our thorough review of the record, we have determined that (1) the trial court failed to satisfy its mandatory duty to act as thirteenth juror; (2) the trial court committed reversible error in allowing the Defendant’s expert witness to testify for the State; (3) the State failed to adduce sufficient proof to support the Defendant’s conviction of first degree premeditated murder; and (4) the State failed to adduce sufficient proof to support the Defendant’s conviction of insurance fraud. Therefore, we must reverse the Defendant’s convictions and remand this matter for a new trial on the charge of second degree murder and any appropriate lesser included offenses. The charge of insurance fraud is dismissed.

This is an appeal from an order of dismissal entered on January 23, 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.
 

In a joint trial, the Appellants, Alexis Mason and Terrence Harris, were convicted of various offenses by a Shelby County jury. Appellant Mason was found guilty of one count of second degree murder, a Class A felony, and three counts of aggravated assault, a Class C felony, for which she received an effective sentence of thirty-seven years in the Department of Correction. Appellant Harris was convicted of three counts of facilitation of aggravated assault, a Class D felony, and one count of facilitation of criminally negligent homicide, a Class A misdemeanor, for which he received an effective sentence of twelve years, eleven months, and twenty-nine days in the Department of Correction. In this consolidated appeal, both Appellants challenge the sufficiency of the evidence supporting their convictions and the sentences imposed by the trial court. Appellant Harris additionally argues that the trial court erred in the following evidentiary rulings: admission of various out-of-court statements; admission of an autopsy photograph; exclusion of evidence of the deceased victim’s violent character; and the denial of jury instructions on self-defense and lesser included offenses. Finding no reversible error, we affirm the judgments of the trial court.

This case concerns the liability for a collision involving a vehicle operated by one of the appellees and an ambulance operated by the appellant county. After a bench trial, the trial court awarded damages to appellee driver against the appellant. After a thorough review of the record, we reverse and remand.

Mother’s parental rights to three children were terminated based on her abandonment, failure to comply with family permanency plans the Department of Children’s Services developed, and persistence of the conditions that required removal of the children initially. Mother appealed, and we affirm the trial court’s judgment. The trial court’s findings are supported by clear and convincing evidence.

The Petitioner, Charles Rice, appeals from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. A Shelby County jury convicted the Petitioner of premeditated first degree murder and felony murder and imposed a sentence of death. The Tennessee Supreme Court affirmed the Petitioner’s convictions and sentence on direct appeal. See State v. Rice, 184 S.W.3d 646 (Tenn. 2006). On appeal, the Petitioner challenges the effectiveness of his counsel’s representation in both the guilt and penalty phases of the trial. We hold that the post-conviction court properly found that the Petitioner received effective assistance of counsel at trial. The judgment of the post-conviction court is affirmed.

A Dickson County grand jury returned an indictment charging the defendant with especially aggravated burglary, especially aggravated kidnapping, first degree premeditated murder, and first degree felony murder. Later the same day, the grand jury returned a superseding indictment re-charging the defendant and her husband with the same offenses, but adding a charge of criminal conspiracy as to each. The prosecution subsequently granted immunity to the defendant’s step-daughter and issued a subpoena for her appearance, and the grand jury reconvened to hear her testimony. The defendant filed a motion to quash the subpoena, arguing that the purpose of the testimony was to improperly acquire evidence to support the pending charges against her. The trial court denied the motion to quash. After the defendant’s step-daughter testified before the grand jury, a second superseding indictment was issued charging all offenses in the first indictment and adding a charge of accessory after the fact against the defendant’s husband. The defendant then filed motions to suppress any testimony by the defendant’s step-daughter at trial and to dismiss all pending indictments. The trial court denied each motion. At the conclusion of the trial, the jury found the defendant guilty of aggravated burglary, especially aggravated kidnapping, attempted first degree premeditated murder, and first degree felony murder. After merging the convictions for attempted premeditated murder and felony murder, the trial court imposed a life sentence for the murder and concurrent sentences of twenty-five and six years, respectively, for the especially aggravated kidnapping and the aggravated burglary. On appeal, the defendant claimed that the trial court should have dismissed the charges because of prosecutorial abuse of the grand jury process. The Court of Criminal Appeals disagreed and affirmed the judgment of the trial court. We affirm the judgment of the Court of Criminal Appeals.

Insurance Company provided Trucking Company with a general liability insurance policy that included the MCS-90 endorsement required by the Motor Carrier Act of 1980. A woman who was a passenger in the insured’s tractor made a claim against Insurance Company for injuries she sustained after the tractor turned over. Insurance Company paid the woman’s claim even though she had not filed a complaint or obtained a judgment against Trucking Company/Insured. Insurance Company then filed a complaint against Trucking Company seeking reimbursement for the amount it paid out. Trial court awarded Insurance Company reimbursement. We reverse because no judgment had been obtained against Trucking Company when Insurance Company paid the woman’s claim. The MCS-90 endorsement is not triggered unless an injured member of the public recovers a final judgment against a motor carrier/insured. Therefore, Insurance Company had no right of reimbursement.
 

A Shelby County Criminal Court Jury convicted the appellant, Curtis Stanton, of the first degree premeditated murder of the victim, Regina Tidwell. The trial court sentenced the appellant to life imprisonment in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence sustaining his conviction. Upon review, we affirm the judgment of the trial court.

Appellant, Danny Ray Dunn, entered guilty pleas without recommended sentences to four counts of vehicular assault, one count of reckless aggravated assault, one count of driving under the influence, one count of driving on a revoked license, and one count of violation of the financial responsibility law. Following a sentencing hearing, the trial court sentenced him to an effective twenty-year sentence consisting of five consecutive sentences of four years each for the assaultive offenses; eleven months, twenty-nine days for driving under the influence; six months for driving on a revoked license; and thirty days for violation of the financial responsibility law, to be served in the Tennessee Department of Correction. Appellant challenges the length of his sentences, sentence alignment, denial of a suspended sentence, and denial of his motion to withdraw his guilty plea. Upon our review of the record, we affirm the judgments of the trial court.

The dispositive issue in this land use appeal highlights important legal distinctions between when a local governmental body is functioning in a legislative capacity or an administrative capacity, and what can go wrong when the governmental body fails to conduct its meetings pursuant to the proper legal standards. When the local governmental body is enacting laws, such as zoning ordinances, it is functioning in a legislative capacity; however, when the governmental body is implementing existing zoning ordinances it is functioning as an administrative body or board. In this case the Council of the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro Council”) was functioning as an administrative board, not in a legislative capacity, when it disapproved an application for the location of a waste transfer station located on property zoned “industrial restrictive.” When the application was disapproved, the applicant filed a petition for common law writ of certiorari seeking to set aside the disapproval on the ground that it was illegal, arbitrary, fraudulent, and/or capricious because the Metro Council failed to comply with the requirements of Metropolitan Code § 17.40.280 by making a decision for the sole reason that local residents opposed the station, and not because the proposed use was “consistent or not consistent” with the requirements of Metro Code § 17.16. The trial court dismissed the petition and this appeal followed. Under the common law writ of certiorari standard, our review of the Metro Council’s administrative decision is limited to determining whether the decision is clearly illegal, arbitrary, or capricious. An administrative decision that is not supportedby substantial and material evidence is, by definition, arbitrary and capricious.This record is devoid of any substantial or material evidence to support the decision to disapprove the location for a waste transfer station; accordingly, the decision was arbitrary. We, therefore, reverse the trial court’s dismissal of the common law petition for writ of certiorari and remand with instructions to set aside the Metro Council’s disapproval of the location and to order that the application for a special exception be submitted to the Board of Zoning Appeals for its consideration pursuant to Metro Code § 17.40.280.