APPELLATE COURT OPINIONS

Appellant, Gary Lynn Harvey, was found guilty by a Knox County Criminal Court jury of assault, a Class A misdemeanor, and disorderly conduct, a Class C misdemeanor. See Tenn. Code Ann. §§ 39-13-101 & 39-17-305. The trial court sentenced Appellant to elevenmonths, twenty-nine days on probation for the assault conviction and to thirty days on probation for the disorderly conduct conviction, with the sentences to run concurrently. On appeal, Appellant contends that the trial court erred by: (1) refusing to dismiss the disorderly conduct charge because the presentment  was insufficient; (2) refusing to dismiss the disorderly conduct charge because section 39-17-305(b) is unconstitutionally vague and overbroad; (3) finding the evidence sufficient to support his conviction for disorderly conduct; (4) finding the evidence sufficient to support his conviction for assault; (5) not declaring a mistrial due to an officer’s conduct during jury deliberations; (6) not finding prosecutorial misconduct after Appellant was charged with assaulting an officer who denied being assaulted; (7) not declaring a mistrial following the discharge of a juror during deliberations and the recall of an alternate juror who had already been discharged; (8) not providing Appellant with a written copy of the jury instructions before his closing argument; (9) incorrectly charging the jury on reasonable doubt; (10) incorrectly charging the jury on self-defense; (11) incorrectly charging the jury on lawful resistance; (12) denying him the right to present a complete defense by erroneously excluding newspaper articles as hearsay evidence; (13) violating his Sixth Amendment right to confront witnesses; (14) improperly conducting voir dire; (15) denying him the right to present a complete defense by erroneously excluding witness testimony and by granting the State’s motion to quash subpoenas against the Knoxville Sheriff and two chief deputy sheriffs; (16) refusing to grant a change of venue; and (17) denying his right to a speedy trial by delaying in ruling on his motion for new trial. Because Appellant was denied his constitutional right to a jury trial when the trial court substituted a discharged alternate juror for a disqualified original juror during deliberations, we reverse the judgments and remand the case for a new trial.

I concur in the results reached in the majority opinion. I respectfully disagree, though, with the opinion’s conclusion that because the Petitioner’s grand larceny and burglary sentences had been served, the Petitioner was not “in custody” on them, thereby barring habeas corpus relief. I believe they were part of consecutive sentences that were to be treated in the aggregate, allowing for habeas corpus relief from any judgment that was void.

The Appellant, James M. Flinn, appeals from the Roane County Criminal Court’s denial of his pro se “Motion for Preliminary Examination or Probable Cause Hearing” and his pro se “Motion to Suppress and Return Items Seized Pursuant to Search Warrant and Warrantless Searches.” On appeal, the Appellant contends that the trial court erred in denying his motions because (1) he was entitled to a preliminary hearing in the Roane County Criminal Court to determine if police had probable cause to detain him and (2) the Roane County Criminal Court had exclusive jurisdiction over his motion to suppress and return property obtained during the search of his home. We affirm the judgment of the trial court.

The appellant, Mark Frederic Taylor, was convicted of two counts of attempt to obtain a controlled substance by fraud and one count of fraudulently obtaining benefits for medical assistance, and he received a total effective sentence of fourteen years, eight years of which was to be served on probation. Subsequently, the trial court found that the appellant violated his probationary sentence by receiving new convictions. Therefore, the trial court revoked the appellant’s probation and  ordered him to serve his entire sentence in confinement. On appeal, the appellant contests the  revocation and the imposition of an incarcerative sentence. Upon review, we affirm the judgments of the trial court.

Bank provided a loan to Borrowers for the purchase of real property and construction of a log cabin home. After Borrowers defaulted on the loan, Bank sold the property at a foreclosure sale. Bank then initiated a lawsuit alleging conversion, negligent business representation, and promissory fraud. Bank also sought a deficiency judgment for the difference in the amount owed on the loan and the foreclosure sale price. After a bench trial, the trial court awarded a judgment for $61,782.12 and a deficiency judgment for $300,644.92 in favor of Bank. Borrowers appeal. We affirm.

This is a case regarding the custody of a minor female child, Bevin H. (DOB: Dec. 19, 2001) (“the Child”). The Child was born to Randy H. (“Father”) and his wife. Tragically, the Child’s mother died two days after the Child was born. Shortly thereafter, the Child’s paternal aunt, Rhonda H. (“Aunt”) and her husband, became the Child’s primary caregivers. Aunt sought custody, alleging that the Child was dependent and neglected in Father’s care. During the pendency of the custody case, the Child was taken into state custody based on evidence that she had been sexually molested. The Child was released to Father and Aunt under an agreed shared parenting plan before the parties filed competing custody petitions. Following a hearing, the juvenile court granted Aunt custody of the Child upon finding that the Child faced a risk of substantial harm if left in Father’s custody. Father was granted supervised visitation with the Child. Father appealed to the trial court. In a two-sentence decision, with no findings of fact, the trial court reversed and placed full custody of the Child with Father. Aunt appeals. We reverse.

Father previously convicted of contempt for failure to pay child support appeals the dismissal of his petition seeking habeas corpus relief. Finding that the petition does not allege facts sufficient to support the issuance of a writ of habeas corpus, the judgment is affirmed.

In this conservatorship action, we granted the application of Jay R. Slobey, James A. Freeman, III and Megan E. Livingstone, all attorneys, for a Tenn. R. App. P. 10 extraordinary appeal seeking relief with respect to two interlocutory orders of the trial court.  The orders are: (1) one prohibiting attorneys with the law firm of James A. Freeman & Associates, P.C. from representing William J. Allen (“the Ward”); and (2) another appointing attorney David L. Robbins as “Attorney ad Litem” but requiring him to perform duties “pursuant to T.C.A.§34-1-107,” a statute dealing with guardians ad litem. After this appeal was granted, the trial court entered an order purporting to “amend its order . . . which appoints David L. Robbins to serve as Attorney ad Litem pursuant to Tenn. Code Ann. § 34-1-107 . . . to reflect that David L. Robbins is to serve . . . pursuant to Tenn. Code Ann. § 34-1-125,” a statute pertaining to attorneys ad litem. The court’s amending order is also being challenged. We (a) affirm the order prohibiting the representation of the Ward by attorneys from the law firm of James A. Freeman & Associates P.C., and (b) vacate the order appointing Mr. Robbins and the later order purporting to amend the order of appointment.

The Petitioner, Clifton Douglas, appeals as of right from the Hardeman County Circuit Court’s dismissal of his petition for a writ of habeas corpus. The Petitioner contends that the State failed to provide proper notice of its intention to seek enhanced punishment as required by statute. See Tenn. Code Ann. § 40-35-202(a). Following our review, we affirm the judgment of the habeas corpus court.

Eric B. (“Father”) appeals the termination of his parental rights with respect to his two minor children. The Department of Children’s Services (“DCS”) petitioned to terminate Father’s rights based upon allegations of abandonment, substantial noncompliance with a permanency plan, and persistence of conditions. Following a hearing, which Father failed to attend, the trial court granted the petition upon finding, by clear and convincing evidence, that all of the alleged grounds were established and that termination was in the best interest of the children. On appeal, Father asserts that his due process rights were violated. He also challenges the weight of the evidence supporting the court’s decision to terminate his parental rights. We reject both challenges. Accordingly, we affirm.

This is a divorce action filed by Sherry Watson (“Wife”) against Beazer Watson (“Husband”). Following a bench trial, the court granted the parties a divorce based on stipulated grounds. It also classified and distributed substantial property, some as separate and the rest as marital. Wife secured new counsel and filed motions, with supporting exhibits, challenging the classification and division of property. The motions purport to be pursuant to, respectively, Tenn. R. Civ. P. 59 and 60.02. The trial court denied the motions. Wife appeals the denial of her motions. We affirm.

The Petitioner, Rickey Clyde Taylor, appeals as of right from the Lauderdale County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner pled guilty to four counts of delivery of .5 grams or more of cocaine, a Class B felony, and received an effective 28-year sentence for the convictions. In this appeal as of right, the Petitioner alleges that as a result of trial counsel’s ineffectiveness, his guilty pleas were involuntarily entered. Following our review, we affirm the judgment of the post-conviction court.

This is an action to establish paternity and set child support filed by the State of Tennessee on behalf of Rochelle L. (“Mother”), the mother of a child born August 6, 1988. The putative father is James G. (“Father”). The trial court held Father liable for back child support of $123,334 by a default judgment entered September 3, 2008. Father filed a postjudgment motion challenging the judgment for lack of service of process. The trial court denied the motion upon finding that Father had “notice” of the action. As a consequence of this finding, the court held that the judgment was valid pursuant to Tenn. Code Ann. § 36-2-305(b)(5)(2010). Father appeals. We affirm.

This appeal arises from a petition to terminate the use of property as a burial ground. The plaintiffs purchased property in which an abandoned cemetery was situated. They filed this complaint for court approval to terminate the use of the property as a burial ground and remove and reinter the remains to another cemetery, pursuant to Tennessee statutes. An attorney ad litem was appointed to represent unknown parties with an interest in the abandoned cemetery. The attorney ad litem investigated and did not oppose the relief sought. The plaintiffs filed a motion for default judgment. The trial court denied the motion for default judgment and dismissed the case. The plaintiffs appeal. We reverse.

In December of 2008, Robert Joe Lee (“Plaintiff”) sued Charles E. Ridenour, Trustee, and FSG Bank National Association (“FSG Bank”) seeking, in part, a declaratory judgment with regard to two trust deeds, and an injunction preventing FSG Bank from foreclosing on the real property named in the trust deeds. After a trial, the Trial Court entered a Final Judgment on February 25, 2010 finding and holding, inter alia, that the trust deeds created a valid enforceable lien on the named real property, and dismissing Plaintiff’s complaint. Plaintiff appeals to this Court. We affirm.

This is a divorce case. The parties had a long-term marriage, with one minor child born of the marriage. The wife was designated as the primary residential parent, and the husband was required to pay alimony and child support. The wife appeals the amount of child support, the alimony award, and the trial court’s denial of her request for attorney fees. The husband argues that he was entitled to relief from his pendente lite child support payments while he was out of work recovering from several surgeries. We reverse the trial court’s holding on the husband’s pendente lite child support, affirm the remainder of the trial court’s holding, and remand.

Following a jury trial in Putnam County, Defendant, Dennis Russell Shaw, was convicted of driving on a revoked license, second offense or subsequent offense, violation of the registration law, and violation of the financial responsibility law. He has appealed only the driving on revoked license conviction, arguing that his conviction was improperly enhanced beyond a first offense.  After reviewing the briefs of the parties and the record, we affirm.

The Defendant, David A. Ferrell, was convicted of failure to display a license, violation of the seatbelt law, and two violations of the vehicle registration law. He was ordered to serve thirty days in jail and pay a fifty-dollar fine. His convictions were affirmed on direct appeal, and the Tennessee Supreme Court denied his application for permission to appeal. The Petitioner filed a petition for post-conviction relief, claiming the trial court lacked jurisdiction over his case. The post-conviction court summarily dismissed the petition citing the petition’s untimeliness. The Petitioner appeals, contending the post-conviction court erred when it dismissed his petition. After a thorough review of the record and applicable law, we reverse the post-conviction court’s judgment.

In this divorce case after lengthy trial, the Trial Court designated the mother as the primary residential parent, awarded the mother alimony, child support, and attorney's fees. The father appealed, asking the Trial Court be reversed on the award of primary care, and the alimony award to the mother. The mother appeals the issue of whether the father was entitled to appeal, since he had been held in contempt of court. Upon consideration of the issues, we affirm the Judgment of the Trial Court.

Petitioner, Marcus Welcome, was convicted by a Knox County jury of criminal responsibility for aggravated robbery. As a result, Petitioner was sentenced as a Range II, multiple offender to twenty years in confinement. Petitioner’s conviction and sentence were affirmed on appeal. State v. Welcome, 280 S.W.3d 215, 218 (Tenn. Crim. App. 2007). Subsequently, Petitioner sought post-conviction relief. After a hearing, the post-conviction court determined that Petitioner had failed to establish that he received ineffective assistance of counsel at trial. After a review of the record, we determine that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the postconviction court is affirmed.

On November 8, 2008, James Turlington and his wife, Altha Turlington, were killed in an automobile accident after their car tuned left in front of a vehicle being driven by John H. Booth, II (“Booth”). Initially, it was believed that the Turlington vehicle was being driven by Altha Turlington. It was determined two days later that the Turlington vehicle was being driven by James Turlington. An accident reconstructionist later concluded that while the Turlington vehicle did turn in front of the Booth vehicle, the Turlington vehicle would have had sufficient time to complete its turn without any collision taking place if Booth had not been speeding. A complaint was filed on November 10, 2009, by Altha Turlington’s daughter, Patricia Mills. The Trial Court determined that the statute of limitations began to run on the day of the accident, that the discovery rule could not be used to extend when the statute of limitations began to run, and the complaint had not been filed within the applicable one year statute of limitations. Plaintiff appeals, and we affirm.

This is a child custody case. The mother and father were never married to each other; the child was born when both were teenagers. Under the parenting plan, the mother was designated as the primary residential parent and the father had parenting time every weekend. After the father married, disputes ensued; many were disputes between the father’s wife and the child’s mother. The father filed a petition to modify the parenting plan to designate him as the child’s primary residential parent. He alleged, among other things, that the child was often tardy or absent from school, that the mother lacked stability, and that mother prevented him from exercising his parenting time. The trial court found no material change in circumstances and declined to change custody. The father appeals. We affirm.

Appellant, the Estate of the Decedent herein, appeals the Chancery Court of McNairy County’s denial of the Estate’s exception to a claim for Decedent’s funeral expenses. Decedent’s brother, the Appellee herein, held a power of attorney for his father (who is also Decedent’s father). Appellee exercised the power of attorney to arrange Decedent’s funeral and to pay for that funeral with the father’s funds. The claim, which was filed in Appellee’s name only, was excepted by the Estate, on grounds that Appellee had no standing to file the claim because he did not, in fact, pay the funeral expenses. The trial court allowed the claim, but held that it was payable to the father. The Estate appeals. We find that the existence and amount of the claim are supported by the record, and that Appellee’s power of attorney authorized him : (1) to bind the father to the funeral contract, (2) to pay the funeral expenses from the father’s funds, and (3) to file a claim against the Estate, on behalf of the father, to recoup those expenses from the Estate. The decision reached by the trial court is affirmed.

The Petitioner, Aaron T. James, appeals the Davidson County Criminal Court’s denial of post-conviction relief from his conviction for especially aggravated kidnapping and resulting sixty-year sentence. He contends that the trial court committed plain error by (1) failing to instruct the jury on the need for unanimity as to the theory of guilt, (2) failing to require the State to elect a theory of guilt, and (3) failing to correct the prosecutor’s misstatement of law during closing argument. He also contends that (4) trial counsel rendered ineffective assistance by failing to object to or request corrections for the first three issues and (5) appellate counsel rendered ineffective assistance by failing to raise these issues on appeal. We affirm the judgment of the trial court.

Appellant, Terry Wayne Robinson, was indicted by the Madison County Grand Jury for driving under the influence (“DUI”) and DUI seventh offense. After a jury trial, Appellant was found guilty of DUI. Appellant pled guilty to DUI, seventh offense. The trial court merged the convictions and sentenced Appellant to four years as a Range II, multiple offender. After the denial of a motion for new trial, Appellant has appealed. Appellant argues on appeal that the evidence was insufficient  to support the conviction for DUI. After a review of the record, we determine that the evidence was sufficient to support Appellant’s conviction. Accordingly, the judgments of the trial court are affirmed.