APPELLATE COURT OPINIONS

The defendant, Michael Marks, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and was sentenced by the trial court to twenty-five years at 100% as a child rapist. He raises the following issues on appeal: (1) whether the trial court erred by not requiring the State to make an election of offenses at the close of its casein-chief; (2) whether the trial court erred by not requiring the State to make an election before the case was submitted to the jury; (3) whether the trial court erred by issuing a supplemental instruction on the election of offenses after the jury had already begun its deliberations; and (4) whether the evidence is sufficient to sustain the conviction. Following our review, we affirm the judgment of the trial court.

Dane Sayles, alias Bradley Harper (“the Defendant”), was convicted by a jury of possession with the intent to sell or deliver three hundred grams or more of cocaine. The trial court sentenced the Defendant as a Range II, multiple offender to forty years to be served consecutively to previous sentences the Defendant received in Pennsylvania. On appeal, the Defendant argues that the trial court erred in denying his motion to suppress the stop and search of his vehicle, as well as the seizure of cell phone text messages. The Defendant also asserts that the trial court erred in “permitting the State to continue adding witnesses in the middle of trial whose names were not provided in discovery.” Finally, the Defendant challenges the length of his sentence. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

This case presents the issue of whether proper service of process was accomplished regarding the defendant, Saeed Etezadi, M.D. Plaintiff, Will J. Milton, filed a medical malpractice action against Dr. Etezadi on April 14, 2003. The complaint and summons were served upon Dr. Etezadi’s office manager, with a notation appearing on the summons that service was accepted as “agent.” Dr. Etezadi filed an answer which, inter alia, raised the affirmative defense of insufficiency of service of process. Mr. Milton voluntarily dismissed that action and subsequently re-filed within one year of the non-suit. In connection with the second action, the complaint and summons were allegedly served upon Dr. Etezadi at his office. Dr. Etezadi filed an Answer, again raising the affirmative defense of insufficiency of service of process. Dr. Etezadi also asserted that all applicable statutes of limitation and repose had expired. He later filed a motion to dismiss. Following the hearing, the trial court dismissed the claims against Dr. Etezadi, finding that there was no service of process in either action. Mr. Milton appeals. We affirm.

A Campbell County jury found petitioner, Crystal Miranda Kirby, guilty of first degree premeditated murder, second degree murder, and especially aggravated robbery. The trial court sentenced her to an effective life sentence. On direct appeal, this court ordered the merger of the two murder convictions but denied relief in all other respects. Petitioner then filed the instant petition for post-conviction relief, which was denied after an evidentiary hearing. Petitioner appeals the denial of post-conviction relief, claiming that the State violated her due process rights under Brady v. Maryland by withholding two video-taped statements that were allegedly exculpatory in nature. After thorough review, we affirm the judgment of the post-conviction court.

On March 18, 1998, a concrete truck collided with a shuttle bus used to transport passengers between the Memphis International Airport and a nearby rental car facility. A passenger, who suffered a severe brain injury as a result of the collision, and his wife brought suit against the owner of the bus, the manufacturer of the bus, the manufacturer of the bus windows, and the franchisor of the rental car business. They based their claims in negligence and products liability, contending that the bus was unsafe because it was not equipped with passenger seatbelts, because it had side windows made of tempered glass rather than laminated glass, and because it provided perimeter seating instead of forward-facing rows. The trial court granted summary judgment to the window manufacturer and partial summary judgments as to the products liability claims against the bus owner and franchisor, but otherwise denied the defendants’ motions for summary judgment, which asserted that the plaintiffs’ claims were preempted by federal motor vehicle safety standards. Following trial, the jury found that the plaintiffs had sustained damages in the amount of $8,543,630, but assessed 100% of the fault to the corporate owner of the concrete truck, which had reached a settlement with the plaintiffs prior to trial. On appeal, the plaintiffs contended that they were entitled to a new trial, citing twelve grounds for review. As a threshold issue, however, the defendants continued to argue federal preemption of the claims. The Court of Appeals held that Federal Motor Vehicle Safety Standards 205 and 208, 49 C.F.R. §§ 571.205, .208 (1995), preempted the claims based on the lack of passenger seatbelts and the material used in the window glass, and further ruled that the trial court had erred by failing to grant a directed verdict on the perimeter-seating claim because the evidence was insufficient to establish causation. We granted the plaintiffs permission to appeal and remanded the case to the Court of Appeals for reconsideration in light of the intervening decision by the United States Supreme Court in Williamson v. Mazda Motor of America, Inc., 131 S. Ct. 1131 (2011). On remand, the Court of Appeals reaffirmed its prior judgment, concluding that the ruling in Williamson did not affect its previous analysis. The plaintiffs were again granted permission to appeal. Because the seatbelt and window-glass claims are not preempted by federal law and the evidence sufficiently demonstrates causation in fact as to the perimeter seating claim, the judgment is reversed and the cause is remanded to the Court of Appeals for consideration of the plaintiffs’ claims of error during the course of the trial.

A Davidson County Criminal Court Jury convicted the appellant, Cayetano Ramirez, of attempted rape of a child. The trial court imposed a sentence of ten years in the Tennessee Department of Correction. On appeal, the appellant challenges (1) the trial court’s denial of his motion to suppress his statement to police, (2) an alleged Brady violation, (3) the admission of a prior act in violation of Tennessee Rule of Evidence 404(b), and (4) the sufficiency of the evidence sustaining his conviction. Upon review, we affirm the judgment of the trial court.

In this interlocutory appeal, the State challenges the trial court’s ruling suppressing the out-of-court identification of the defendant via a photograph array and the subsequent in-court identification by the same witness at the suppression hearing. The State contends that the trial court erred by deeming the identification procedure unduly suggestive. Discerning no error, we affirm the judgment of the trial court.

The Defendant pled guilty to aggravated assault, and the trial court sentenced him to four years, suspended after three months and nineteen days in confinement. In January 2012, the Defendant’s probation officer filed an affidavit alleging that the Defendant had violated the terms of his probation. After a hearing on the allegation, the trial court revoked the Defendant’s probation and ordered him to serve the balance of his sentence in confinement. On appeal, the Defendant contends that the trial court erred when it ordered him to serve the balance of his sentence in confinement. After a thorough review of the record and applicable authority, we conclude that the trial court did not err. The trial court’s judgment is, therefore, affirmed.

The final judgment from which the appellant seeks to appeal was entered on December 3, 2012. The only Notice of Appeal “filed” by the appellant on December 28, 2012, was submitted to the trial court clerk via facsimile transmission in violation of Rule 5A.02(4)(e) of the Rules of Civil Procedure. Because the Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

The defendant, Kelvin Winn, was convicted by a Shelby County Criminal Court jury of first degree felony murder and sentenced to life imprisonment. On appeal, he argues that: (1) the trial court erred in denying his motion to suppress the identification of him from a photographic array; (2) the trial court erred in allowing a jailhouse informant to testify without limitations; (3) the trial court erred in allowing the State to lead witnesses over his objection; (4) the trial court erred in allowing the introduction of duplicative photographs; and (5) the evidence is insufficient to sustain his conviction. After review, we affirm the judgment of the trial court.

A Shelby County jury convicted Defendant, Michael McVay, with rape of a child, aggravated sexual battery, rape, and sexual battery by an authority figure. The trial court sentenced Defendant to serve 25 years for rape of a child, 20 years for aggravated sexual battery, 20 years for rape, and 10 years for sexual battery by an authority figure. The trial court ordered all sentences to run consecutively, with a 100% release eligibility for the first three counts - child rape, aggravated sexual battery, and rape, and a 35% release eligibility for count four, sexual battery by an authority figure, for an effective sentence of 75 years in the Department of Correction. On appeal, Defendant presents the following issues: (1) the trial court erred by excluding evidence of the victim’s sexual behavior; (2) the trial court erred by excluding evidence of the victim’s prior complaint of sexual assault; and (3) the trial court erred by imposing an excessive sentence. Additionally, the State contends the trial court improperly sentenced Defendant on two of his four convictions. After thorough review, we affirm Defendant’s convictions. However, the trial court’s sentencing order is vacated in part and this case is remanded for further proceedings in accordance with this opinion.

The Defendant, Glenn Lydell McCray, was found guilty by a Davidson County Criminal Court jury of especially aggravated kidnapping, a Class A felony, two counts of aggravated assault, Class C felonies, and being a felon in possession of a firearm, a Class E felony. See T.C.A. §§ 39-13-305 (2010) (especially aggravated kidnapping), 39-13-102 (2010) (aggravated assault), 39-17-1307 (2010) (felon in possession of a firearm). He was sentenced as a Range II, multiple offender to thirty years for especially aggravated kidnapping, eight years for each aggravated assault, and three years for illegal possession of a firearm. The trial court ordered consecutive sentences for the especially aggravated kidnapping and aggravated assault convictions, for an effective forty-six-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support the especially aggravated kidnapping conviction, (2) the court improperly instructed the jury regarding the especially aggravated kidnapping conviction, (3) the court erred by failing to merge the aggravated assault convictions, and (4) the court erred by imposing consecutive sentencing. Although the jury was not properly instructed regarding the especially aggravated kidnapping conviction, we conclude that the error was harmless beyond a reasonable doubt and affirm the judgments of the trial court.

The petitioner, Bruce L. Robinson, appeals the dismissal of his petition for post-conviction relief as time-barred, arguing that the United States Supreme Court’s recent holding in Missouri v. Frye , __ U.S. __, 132 S. Ct. 1399 (2012), established a new constitutional right that did not exist at the time of his guilty pleas, thereby requiring retroactive application. Following our review, we affirm the judgment of the trial court summarily dismissing the petition as time-barred.

I respectfully dissent from the majority opinion insofar as it concludes that aggravated assault involves some form of confinement in this case. In State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), the supreme court held, 

The defendant, Nora Hernandez, appeals from the Williamson County Circuit Court’s order revoking her probation and denying her bid to vacate her convictions and sentences. Because this court lacks jurisdiction of the claim relevant to the defendant’s motion to vacate, that portion of the appeal is dismissed. Because the record supports revocation of her probation, the judgment of the trial court ordering the same is affirmed.

The petitioner, Troy Allen Pruitt, appeals the Montgomery County Circuit Court’s denial of post-conviction relief from his 2007 convictions in that court of aggravated robbery and fraudulent use of a credit card. Because the petitioner failed to establish his claim of ineffective assistance of counsel and because binding law-of-the-case determinations from his direct appeal defeat his claim of prejudice, we affirm the order of the post-conviction court.

Larry Scott Reynolds ("the Petitioner") was convicted by a jury of first degree premeditated murder. The trial court sentenced the Petitioner to life imprisonment. The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that the post-conviction court failed to make "sufficient findings of fact to allow meaningful review" and "erred in questioning the Petitioner and in making other comments" at the post-conviction hearing. The Petitioner also asserts 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 is a termination of parental rights case. The trial court concluded that it was in the best interests of the child to terminate Mother’s parental rights on the grounds that Mother was incarcerated under a sentence of more than 10 years and her child was under the age of eight at time of sentencing, see Tenn. Code Ann. § 36-1-113(g)(6), and that Mother was convicted of the intentional and wrongful death of the child's other parent, see Tenn. Code Ann.  36-1-113(g)(7). Mother appeals. We affirm.

This is the second appeal of a post-divorce decision concerning child support. In the first appeal, we determined that the trial court erred in failing to make the required findings to justify an upward deviation in child support, thus we vacated the award of child support and remanded for a determination of the appropriate amount. Following the hearing on remand, the trial court set the appropriate amount of child support and determined that Father had overpaid child support. The court did not award Father a judgment or credit in the amount of his overpayment, and Father appeals. We conclude that the trial court abused its discretion in failing to award Father a credit or judgment in the amount of his overpayment.

Executrix of an estate filed a complaint against the officers of a corporation in an effort to pierce the corporate veil and recover a debt she alleges is due from the corporation to the estate of her late husband. The trial court granted her motion for summary judgment and awarded her a $52,000 judgment. The individuals appealed, asserting genuine issues of material fact should have precluded the trial court’s award. We conclude the trial court erred in awarding damages at the summary judgment stage because material facts are in dispute regarding whether a debt actually exists and regarding the amount of money that is at issue.
 

At the time of the parties’ divorce, both parties lived in Tennessee, and Mother was named primary residential parent. Shortly thereafter, Mother was allowed to relocate to Georgia with the children, and Father’s requests that he be named primary residential parent were denied. Following the move, the parties were unable to agree to a parenting plan, and the circuit court resolved the remaining parenting issues and transferred future disputes to Georgia. On appeal, the pro se parties raise numerous issues related to various decisions of the trial court. We affirm in part and we reverse in part, and we remand for further proceedings.

Brandon Trae Wagster (“the Defendant”) was indicted for driving under the influence and violation of the implied consent law. He filed a motion to suppress, challenging the legality of the stop of his vehicle. After an evidentiary hearing, the trial court granted the Defendant’s motion and dismissed the charges against him. The State appeals. After a thorough review of the record and the applicable law, we reverse the judgment of the trial court and reinstate the Defendant’s charges.

This is an appeal from the circuit court’s dismissal of Appellant’s appeal from general sessions court. Upon filing the appeal, Appellant paid costs in the general sessions court pursuant to Tennessee Code Annotated Section 8–21–401(b)(1)(C)(i), but did not submit a surety bond under Tennessee Code Annotated Section 27-5-103. The circuit court held that failure to post the surety bond under Section 27-5-103 resulted in a lack of subject matter jurisdiction in the circuit court. Accordingly, the trial court granted Appellees’s motion to dismiss the appeal for lack of subject matter jurisdiction. Based upon this Court’s recent decision in Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), we reverse the dismissal and remand for further proceedings.

Appellant, Michael Fields, was indicted by the Sullivan County Grand Jury for two counts of first degree murder, two counts of first degree felony murder, and two counts of especially aggravated robbery. After a jury trial, he was convicted as charged. The jury determined that the sentence for the first degree murder counts should be life without parole. The trial court merged the first degree murder convictions into the first degree felony murder convictions. The trial court imposed a twenty-five-year sentence for each especially aggravated robbery conviction. The twenty-five-year sentences were ordered to run concurrently to the life sentences. The two life sentences were ordered to run consecutively to each other and consecutively to a previously imposed sentence of life plus forty years. Appellant presents several arguments on appeal: (1) the trial court erred in denying his motion to change venue; (2) the trial court erred in denying his request for the trial judge to recuse himself; (3) the trial court erred in denying his motion for a mistrial when there was juror contact with the prosecuting officer; (4) there was prosecutorial misconduct during closing argument; (5) the trial court erred in denying his motion to suppress his statement to police; (6) the trial court erred in excluding the testimony of Appellant’s proffered expert witness, Dr. Charlton Stanley; (7) the trial court erred in allowing the use of a stun belt on Appellant during the trial; (8) the trial court erred in denying his motion for judgment of acquittal; (9) the evidence was insufficient to support his convictions; and (10) the trial court erred in imposing the sentence for especially aggravated robbery and in ordering consecutive sentences. Appellant argues several smaller miscellaneous issues concerning evidentiary rulings, closing argument of the State, the denial of his request to have both of his attorneys present separate closing arguments, the denial of funds to pay an expert witness, and the failure to assure that Appellant received his prescribed medication in jail. After a thorough review of the record, we find no error. Therefore, the judgments of the trial court are affirmed.

This case involves the construction of the parties’ marital dissolution agreement. Father appeals the transfer of his case from circuit court to chancery court, the trial court’s dismissal of his petition for a declaratory judgment, and the trial court’s ruling finding him in breach of the post-majority support provision of the marital dissolution agreement and awarding Mother attorney fees. We reverse as to the attorney fee award, but affirm as to the remainder.