APPELLATE COURT OPINIONS

The defendant, Denver L. Brown, III, was convicted in the Sullivan County Criminal Court on his guilty plea to aggravated robbery, a Class B felony. As part of the plea agreement, the defendant accepted a sentence of eight years with the understanding that the offense of which he was convicted was statutorily ineligible for probation, but he reserved the right to have the manner of service of the sentence determined by the trial court and sought community corrections. The trial court imposed incarceration. The defendant appeals, contending that the trial court erred in determining that he was statutorily ineligible for community corrections and that he should have received a community corrections sentence. We affirm the judgment of the trial court.

The defendant, Taft Arkey Murphy, was convicted by a jury in the Criminal Court for Davidson County of possession with intent to sell three hundred or more grams of cocaine in a school zone, a Class A felony; possession with intent to sell twenty-six or more grams of cocaine in a school zone, a Class A felony; sale of twenty-six or more grams of cocaine in a school zone, a Class A felony; two counts of sale of twenty-six or more grams of cocaine, a Class B felony; and possession of a handgun by a felon, a Class E felony. He was sentenced to eighteen years for each Class A felony, nine years for each Class B felony, and two years for the Class E felony, to be served concurrently. The defendant appeals and contends: (1) that the evidence is insufficient to convict him of possessing a handgun as a felon, and (2) that he was improperly prejudiced by testimony that the defendant had a murder charge. We affirm the judgments of the trial court.

The defendant, Marcus Nigel Davis, appeals from the judgment of the Knox County Criminal Court, revoking his probation and reinstating his original sentence of six years. Following our review, we affirm the judgment of the court.

The petitioner, James Wilson, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief. The State has filed a motion requesting that this court affirm the lower court’s denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to prove his allegations by clear and convincing evidence, we conclude that the State’s motion is well-taken. Accordingly, we affirm the lower court’s denial of post-conviction relief.

This lawsuit was filed by Jacqueline and Jonathan Huls (“Petitioners”) seeking court-ordered visitation with their grandson pursuant to Tennessee’s Grandparent Visitation Act, Tenn. Code Ann. § 36-6-306. The lawsuit was filed against Jason Alford (“Father”) and Leeanna Alford (“Mother”), the biological parents of Petitioners’ grandson. At trial, both parents testified that they had not and still did not oppose visitation between Petitioners and Petitioners’ grandson. Although comments made by the Trial Court support an implicit finding by the Trial Court that the parents did not oppose visitation, there was no express determination made on this particular issue. Following the trial, the Trial Court entered an order granting the petition and establishing a visitation schedule for Petitioners. We conclude that the testimony at trial preponderates in favor of a finding that the parents did not and do not oppose visitation. We further hold that in order for Tenn. Code Ann. § 36-6-306 to be implicated, visitation by grandparents must be “opposed by the custodial parent or parents.” Tenn. Code Ann. § 36-6-306(a). Because we find that the parents do not oppose visitation, the statute is not implicated, and the Trial Court erred by not dismissing this case. We, therefore, reverse the judgment of the Trial Court, and this case is dismissed.

Appellant, Jonathan Bradford Dunn, was indicted by the Bedford County Grand Jury for one count of theft of property valued at more than $1,000 but less than $10,000, and one count of filing a false report. After a jury trial, Appellant was convicted on both counts as stated in the indictment. The trial court sentenced Appellant to three years as a Range II multiple offender for theft of property and six years as a Range II multiple offender for filing a false report. The sentences were ordered to run consecutively to each other and to the sentence in Bedford County Case Number 15560. After the denial of a motion for new trial, Appellant initiated the appeal herein, presenting the following issues for our review: (1) whether the evidence was sufficient to support the conviction for filing a false report; and (2) whether the sentence imposed by the trial court was excessive. We determine that the evidence is sufficient to support the conviction and that the trial court properly sentenced Appellant. Consequently, we affirm the judgment of the trial court.

This is a child support case. The trial court determined Respondent Father had the ability to earn minimum wage and entered a temporary order of support ordering him to pay child support based upon a minimum wage income. Father filed a motion to set aside the order and failed to pay the ordered support. The State, acting ex rel. Mother, filed a petition for contempt, a petition for retroactive child support, and a petition to set permanent child support. Following a hearing, the trial court denied Father’s motion to set aside the temporary support order, affirmed the finding that Father was capable of earning minimum wage, and held Father in criminal contempt. The trial court also ordered Father to pay retroactive child support. The trial court stayed its order sentencing Father to jail for criminal contempt pending appeal to this Court. Father appeals the order finding him in contempt, the denial of his motion to set aside the temporary order of support, and the order of retroactive child support. We reverse the order on contempt and dismiss the remainder of Father’s appeal for failure to appeal a final judgment.

A Hardeman County jury convicted the defendant, Aquellis Quintez Tucker, of one count of first degree felony murder, one count of first degree premeditated murder, one count of attempted first degree murder, one count of aggravated assault, and one count of especially aggravated burglary.  The trial court merged the two first degree murder convictions, and it also merged the defendant’s attempted first degree murder and aggravated assault convictions. The trial court sentenced the defendant to life in prison on the first degree murder conviction, fifteen years on the attempted first degree murder conviction, and eight years on the especially aggravated burglary conviction, with all sentences to be served concurrently. The defendant appeals, asserting that the evidence produced at trial was insufficient to support his convictions. After reviewing the record, we conclude that no error exists with respect to the defendant’s allegations. However, we further conclude that the defendant’s especially aggravated burglary conviction was precluded by statute. Accordingly, we modify that conviction to one for aggravated burglary and remand the case to the trial court for sentencing on that offense.

This appeal involves the procedure for discovering the records of a clinical psychologist whom the defendant intends to call as an expert witness at a pretrial competency hearing in a criminal case. After the defendant filed a petition in the Circuit Court for Chester County requesting to be declared incompetent to stand trial, the State obtained a judicial subpoena under Tenn. Code Ann. § 40-17- 123 (2006) directing the defendant’s psychologist to produce “[a]ny and all records” related to his examination of the defendant. The trial court declined to quash the subpoena but granted the defendant an interlocutory appeal to the Court of Criminal Appeals. The intermediate appellate  court held that the trial court erred by issuing a subpoena under Tenn. Code Ann. § 40-17-123 but, characterizing the competency hearing as “in the nature of a civil proceeding,” ordered the production of the materials sought in accordance with Tenn. R. Civ. P. 35.02. State v. Harrison, No. W2006-00483-CCA-R9-CD, 2007 WL 906730, at *4 (Tenn. Crim. App. Mar. 2, 2007). We granted the defendant’s application for permission to appeal to address the application of Tenn. R. Civ. P. 35.02 to pretrial competency hearings in criminal cases. We concur with the Court of Criminal Appeals’ conclusions that the trial court erred by granting the judicial subpoena and that the State is entitled to discover the report of the expert testifying for the defendant in the competency  hearing. However, we have also determined that Tenn. R. Civ. P. 35.02 does not apply to pretrial competency hearings in criminal cases. Exercising our inherent supervisory authority over  Tennessee’s judicial system, we adopt a temporary procedure for the disclosure and use of evidence relating to competency to stand trial in criminal cases.

The petitioner, Eddie Lee Douglas, appeals the denial of his petition for post-conviction relief from his second degree murder conviction, arguing that he received ineffective assistance of trial counsel and that his guilty plea was therefore unknowing and involuntary. Following our review, we affirm the judgment of the post-conviction court denying the petition.

A former sheriff’s deputy appeals his termination. The Shelby County Civil Service Merit Board upheld the termination, and upon review, the chancery court found substantial and material evidence to support the decision. We affirm.

The defendant, Markese Alexander Brooks, was convicted by a Shelby County Criminal Court jury of first degree felony murder and attempted especially aggravated robbery and was sentenced by the trial court to concurrent terms of life and ten years, respectively. In a timely appeal to this court, he challenges the sufficiency of the convicting evidence and argues that the trial court erred in denying his motion to suppress his statement to the police and in allowing inadmissible hearsay testimony from a State’s witness. Following our review, we affirm the judgments of the trial court.

The Defendant pled guilty in September 2005 to possession of .5 grams or more of a Schedule II drug with the intent to sell, which is a Class B felony. The trial court sentenced the Defendant to twelve years, and he was released to a community corrections program after serving one year of incarceration. Following a hearing, the trial court found the Defendant had violated his community corrections sentence, and it revoked the Defendant’s community corrections sentence and resentenced the Defendant to sixteen years of incarceration. On appeal, the Defendant claims the trial court erred when it revoked his community corrections sentence and re-sentenced him. After a thorough review of the record and the applicable law, we affirm the trial court’s judgment.

This is a nursing home negligence case involving an arbitration agreement. The son of the decedent signed documents admitting his mother to the defendant nursing home. The admission documents included an arbitration agreement. After his mother’s death, the son filed a lawsuit on behalf of her estate against the defendant nursing home, alleging, inter alia, neglect and abuse. The nursing home filed a motion to dismiss the lawsuit and compel arbitration under the agreement. The trial court granted the motion, finding that the agreement was not unconscionable and that the son had apparent authority to sign the agreement in view of his mother’s incompetence and the exigent circumstances. The mother’s estate appeals. We find on appeal that the son was not his mother’s agent and did not have apparent authority to sign on her behalf. Applying the Tennessee Health Care Decisions Act, we find further that the son was not his mother’s surrogate, and that he did not have  authority to bind her to the arbitration agreement. Therefore, we reverse the order compelling arbitration.

This appeal involves the sale of an asset of a testamentary trust. The plaintiff/appellant is a beneficiary of the trust, and the defendant/appellee bank is trustee of the trust. The trust originally had a promissory note as one of its assets. In 1981, the trust sold the note at a discount. In 1987, the bank submitted an accounting and sought approval for the sale of the note. The appellant’s father, also a beneficiary of the trust, challenged the bank’s petition. In 1989, the chancery court issued an order approving the sale of the promissory note. The order was signed by the appellant and was not appealed. In 2006, the appellant beneficiary filed a complaint in the trial court below, challenging the sale of the note. The trial court granted summary judgment in favor of the bank, finding that the appellant’s claims were barred under the doctrine of res judicata and collateral estoppel, and that they were time-barred as well. In addition, the trial court awarded Rule 11 sanctions against the beneficiary. The beneficiary appeals. We affirm, finding that the beneficiary’s claims are barred by the statute of limitations, and that Rule 11 sanctions are warranted.

We granted the Defendant’s request for permission to appeal to address the propriety of jury instructions requiring the jury to reach a unanimous decision to acquit of a greater offense before considering a lesser-included offense. We hold that such jury instructions are proper and do not violate the Defendant’s right to trial by jury. We also hold that the trial court’s imposition of consecutive sentences did not violate the Defendant’s federal Sixth Amendment rights. While the Defendant has raised several other issues, we have determined that the Court of Criminal Appeals correctly held that they do not entitle the Defendant to relief. Accordingly, we affirm the Defendant’s convictions and sentences.

This appeal involves tort and breach of contract claims. The plaintiffs are franchisees of a restaurant chain. They filed this lawsuit against an individual employee of the franchise organization as well as other corporate defendants. The complaint set forth many theories of recovery, but asserted only an extortion claim against the individual employee. The trial court dismissed the extortion claim and, consequently, dismissed the employee from the lawsuit. The plaintiffs’ claims against the corporate defendants remained pending. The plaintiffs filed this appeal of the trial court’s order dismissing the claim against the individual employee. The plaintiffs were not given permission to file an interlocutory appeal, and the order from which the plaintiffs appeal was not designated as final under Tenn. R. Civ. P. 54.02. Thus, we find that the order from which the plaintiffs appeal was not a final order, and therefore dismiss the appeal.

The specific question presented for our review is whether the acquittal-first jury instruction, in the context of the right to a complete charge on the count in the indictment as well as any and all lesser-included offenses supported by the evidence at trial, either is violative of our constitution or should be overruled for policy reasons. See State v. Ely, 48 S.W.3d 710 (Tenn. 2001); State v. Burns, 6 S.W.3d 453 (Tenn. 1999). The majority concludes that the instruction meets constitutional muster, and I am inclined to concur with that assessment; however, an acquittal-first instruction in Tennessee largely qualifies as legal fiction because the trial judge is required under our constitution to instruct on the primary charge and the full panoply of lesser-included offenses in advance of deliberations. That is, the jury, by being provided with the entirety of the instructions as appropriate, necessarily considers any lesser-included offenses before convening for deliberations. It is my belief, therefore, that as a matter of practicality and for sound policy reasons, Tennessee should retreat from acquittal-first and formally adopt an alternative instruction – one which fits within the framework of a criminal jury trial and which best conforms to specific provisions within our state constitution.

Following a bench trial in Cumberland County, the defendant, Kim McBride Murphy, was convicted of driving under the influence (DUI), a Class A misdemeanor, and sentenced to eleven months and twenty-nine days, with thirty days to be served in confinement. The defendant filed a timely motion for new trial, which the trial court orally denied. No written order of the denial is included in the record, however. On appeal, the defendant contends that the evidence is insufficient to support her conviction for DUI. After review of the record, we conclude that we lack jurisdiction in the case because the record contains no written denial of the motion for new trial. Accordingly, the appeal is dismissed.

The Appellant, Mohamed Omar Muse, appeals his convictions by a Davidson County jury and the resulting sentences imposed by the Davidson County Criminal Court for the offenses of sale of less than point five (.5) grams of cocaine and possession of point five (.5) grams or more of cocaine with intent to sell or deliver. On appeal, Muse argues: (1) that the evidence offered at trial was insufficient to support his convictions; (2) that the trial court erred by failing to instruct the jury regarding casual exchange; (3) that the trial court erred in denying his motion to suppress evidence seized from his person at the time of his arrest; (4) that the trial court erred in denying his motion for recusal based upon alleged racial and religious prejudices of the trial court; and (5) as to sentencing, that the trial court erred in its weighing of mitigating and enhancement factors and in denying a probationary or community corrections sentence. Upon complete review of the record and the arguments of the parties, we affirm the judgments of the trial court.

Plaintiffs brought this action against the Tennessee Peace Officers Standards Commission, the Tennessee Attorney General, Knox County Mayor and Timothy Hutchison seeking declaratory judgment that Hutchison was disqualified to serve as a deputy sheriff of Knox County. Responding to a Motion to Dismiss, the Chancellor dismissed the action and, on appeal, we affirm.

This appeal concerns the enforceability of an arbitration agreement between a nursing home and one of its patients. The trial court found that the agreement was unenforceable because the nursing home’s agent gave an insufficient explanation of the agreement’s meaning to the patient’s daughter. We do not reach the merits of the trial court’s conclusion. Instead, we find that the patient’s daughter did not have the authority to sign the agreement on her father’s behalf. We, therefore, affirm the trial court’s denial of the defendant’s motion to compel arbitration.

Defendant, Randall McClure, pled guilty to one count of the sale of less than .5 grams of cocaine and one count of the delivery of less than .5 grams of cocaine. The convictions were merged. The manner of service of the agreed upon five year sentence was to be determined by the trial court at a sentencing hearing. Defendant requested alternative sentencing and after conducting the sentencing hearing the trial court denied the request and sentenced Defendant to serve the five-year sentence incarcerated. On appeal, Defendant argues the trial court erroneously denied his request for alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court.

The defendant, James Edward Farrar, Jr., appeals from his Bedford County Circuit Court jury conviction of bribing a witness. He claims that the verdict is not supported by legally sufficient evidence and that the trial court erred in admitting into evidence a compact disc containing recorded telephone calls that the State failed to properly authenticate. Because we disagree, we affirm the judgment of the trial court

This is the third appeal of this property case involving the ownership of three parcels of real property held by tenants-in-common. We dismissed the first two appeals for lack of jurisdiction, finding that the trial court's order did not constitute a final judgment. Plaintiffs/Appellants claim ownership of the disputed tract by three modes: (1) title by prescription, (2) title by adverse possession, and (3) title by payment of property taxes pursuant to Tenn. Code Ann. §§ 28-2-109 and 29-2-110. Finding that Plaintiffs/Appellants have failed to meet their burden to prove ownership based upon any of the three theories, we affirm.