Week of December 7, 2020 - December 11, 2020

The Defendant, Jordana Jenyane Wright, pled guilty to Class E felony theft of property with an agreed-upon sentence of one year and six months of probation. Following a hearing, the trial court denied the Defendant’s request for diversion. The Defendant appeals, arguing that the trial court, in its decision to deny diversion, failed to properly account for the Defendant’s lack of a criminal record and improperly weighed irrelevant facts, such as the Defendant’s failure to implicate any potential co-defendants and the criminal history of the Defendant’s fiancé. After our review, we affirm the judgment of the trial court.

The petitioner, Demetrice A. Smith, appeals the denial of his petition for post-conviction relief, which petition challenged his 2017 guilty-pleaded convictions of possession of a handgun after having been convicted of a felony and failure to appear, alleging that his guilty plea was unknowing and involuntary because he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Petitioner, Michael F. Maraschiello, was convicted of first degree murder, arson, possession of a shotgun with an altered serial number, and theft after a jury trial in 1997. He was sentenced to life plus five years for the convictions. Petitioner appealed and this Court affirmed the conviction. State v. Maraschiello, 88 S.W.3d 586, 590 (Tenn. Crim. App. 2000). Over 19 years ago, Petitioner filed a petition for post-conviction relief alleging various grounds for relief including ineffective assistance of counsel. Petitioner sought funding for a medical and psychological expert in 2005, and the post-conviction court denied the request. The post-conviction court granted Petitioner permission for an interlocutory appeal. This Court denied the application for permission to appeal. State v. Michael F. Maraschiello, M2007-01968-CCA-R9-CO, at *2 (Tenn. Crim. App. Sept. 26, 2007) (order). After multiple amended petitions that included dozens of claims, the postconviction court denied relief to Petitioner in 2019. On appeal, Petitioner argues that the evidence weighs against the post-conviction’s court finding that Petitioner was not a credible witness, that he has a constitutional or statutory right to state funded experts and investigators, that the post-conviction court erred by denying Petitioner the ability to prove his claims by refusing to allow Petitioner to call sixty-nine witnesses, that the postconviction court erred when it rejected Petitioner’s claim that he clearly accepted a plea offer, and that trial counsel provided ineffective assistance of counsel by failing to call or impeach witnesses. After a thorough review of the very lengthy record, we affirm the decision of the post-conviction court.

This appeal arises from a judgment finding the defendant violated a protective order and a subsequent judgment extending the protective order for one year. Specifically, the defendant seeks to set aside these judgments based on inadequate notice. Although the defendant appeared in court for a related hearing and admits that all notices were sent to her at the proper address, she contends on appeal that, because she was a frequent traveler, she was unaware of the two hearings at issue in this appeal until after they occurred. We have determined the defendant waived the notice issue by failing to bring it to the attention of the trial court and by failing to comply with Rule 27 of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals. Accordingly, we affirm the judgment of the trial court. Additionally, we have determined the appeal was frivolous; therefore, the plaintiff is entitled to recover the reasonable and necessary expenses and attorney’s fees incurred in this appeal in accordance with Tenn. Code Ann. § 27-1-122. Accordingly, we remand for the trial court to make the appropriate award.

The father of two children appeals the termination of his parental rights, contending the petitioner failed to prove a ground for termination or that termination was in the children’s best interests by clear and convincing evidence. In 2018, the juvenile court placed the children in foster care and declared them dependent and neglected upon the petition of the Department of Children’s Services. The court then ratified a permanency plan that had several requirements for the father, including submitting to and passing random drug screens, resolving pending legal issues, and avoiding new criminal charges. Over the next two years, the father only completed some of the action steps and incurred new criminal charges for which he was incarcerated. In September 2019, the Department filed a petition to terminate the father’s rights on the grounds of abandonment by exhibiting a wanton disregard for the children’s welfare and by failure to visit, failure to comply with the permanency plan, and failure to manifest an ability and willingness to assume custody of and financial responsibility for the children. After the final hearing, the court found that the Department proved all four grounds and that termination was in the children’s best interests. This appeal followed. Following a detailed review of the record, we affirm the trial court’s findings in all respects and affirm the termination of the father’s parental rights.

The present appeal concerns an insurance agent’s alleged negligent failure to procure excess uninsured motorist coverage in accordance with a prospective insured’s instructions. The two insured parties, a married couple, filed suit against their insurance agent and agency after they were denied coverage by the insurance carrier. The trial court found that it was undisputed that the insureds had paid the premium for the policy in effect and applied Tennessee Code Annotated section 56-7-135(b), which provides: “The payment of premium for an insurance contract, or amendment thereto, by an insured shall create a rebuttable presumption that the coverage provided has been accepted by all insureds under the contract.” The trial court determined that the insureds had failed to rebut the statutory presumption that they had accepted the provided coverage, which did not include excess uninsured motorist coverage. Therefore, the trial court granted the insurance agent’s motion for summary judgment. The Court of Appeals, however, reversed, concluding that the rebuttable presumption does not apply to actions against an insurance agent. We granted the ensuing application for permission to appeal to address whether section 56-7-135(b) applies to create a rebuttable presumption in actions against an insurance agent for negligent failure to procure an insurance policy as directed. Considering the plain language of the statute, we conclude that it does create such a presumption. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court granting summary judgment.

MURPHY, Circuit Judge. Courts often must apply the legal rules arising from fixed constitutional rights to new technologies in an evolving world. The First Amendment’s rules for speech apply to debate on the internet. Packingham v. North Carolina, 137 S. Ct. 1730, 1735–36 (2017). The Second Amendment’s rules for firearms apply to weapons that did not exist “at the time of the founding.” District of Columbia v. Heller, 554 U.S. 570, 582 (2008). The Supreme Court has made the same point for the rights at issue in this criminal case: The Fourth Amendment right against “unreasonable searches” and the Sixth Amendment right to confront “witnesses.” See Kyllo v. United States, 533 U.S. 27, 34–36 (2001); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 315–17 (2009). We must consider how the established rules for these traditional rights should apply to a novel method for combatting child pornography: hash-value matching.

“Simply put, this case is not at all like . . . Lowe.” United States v. Niggemann, 881 F.3d 976, 981 (7th Cir. 2018). The circumstantial evidence here, unlike the circumstantial evidence there, sufficed for a rational jury to exclude Fred beyond a reasonable doubt. See United States v. Clingman, 521 F. App’x 386, 395–96 (6th Cir. 2013). In other cases rejecting sufficiency challenges like Miller’s, courts have pointed to such circumstantial evidence as the fact that the incriminating account (like the Gmail account) was registered to the defendant. See Niggemann, 881 F.3d at 980. These cases have also pointed to the fact that a profile page of a relevant account included the defendant’s picture (like the “Tagged” account) or the fact that the emails sent from a relevant account included “identifying photographs” and used the defendant’s name (like many of the emails from the Gmail account). See United States v. Woerner, 709 F.3d 527, 536–37 (5th Cir. 2013); see also United States v. Farnum, 811 F. App’x 18, 20 (2d Cir. 2020) (order). And these cases have pointed to the defendant’s own statements that he possessed the child pornography (like the statements that Miller made to Detective Schihl). Woerner, 709 F.3d at 537.

We affirm.

The petitioner, Thomas McLaughlin, appeals the denial of his petition for post-conviction relief, which petition alleged that he was deprived of the effective assistance of counsel at a revocation hearing.  Discerning no error, we affirm the denial of post-conviction relief.

The transferee of real property following a foreclosure sale filed a forcible entry and detainer action against the occupier. After the transferee prevailed in the general sessions court, the occupier appealed to circuit court. The transferee then filed a motion for summary judgment, which the trial court granted. Because the undisputed facts demonstrate that the transferee is entitled to judgment as a matter of law, we affirm.