APPELLATE COURT OPINIONS

The defendant, Sandra Evans, was convicted of first degree felony murder in the perpetration of theft and voluntary manslaughter (a Class C felony). The conviction for voluntary manslaughter was merged with the felony murder conviction, and the defendant was sentenced to life imprisonment. On appeal, the defendant challenges the admissibility of hearsay testimony under the exceptions for excited utterances, and medical diagnosis and treatment. The defendant also contends that certain testimony violated her right to confrontation and that the evidence, as a whole, was insufficient to support the convictions. Upon review, we reverse the conviction and remand for a new trial.

Appellant, Milica Wilson, was indicted for one count of attempted especially aggravated robbery. After a jury trial, Appellant was found guilty of facilitation of attempted especially aggravated robbery. He was found not guilty of felony murder and first degree murder. As a result, Appellant was sentenced on August 13, 2003, to serve eight years as a Range II, multiple offender in the Department of Correction. Appellant filed an untimely motion for new trial on September 25, 2003. Subsequently, Appellant filed two amended motions for new trial. The trial court conducted a hearing on the motions on February 27, 2006, at the conclusion of which the trial court denied the motion for new trial. Appellant filed an untimely notice of appeal. On appeal, Appellant contends: (1) the evidence was insufficient to support the conviction; (2) the trial court erred in admitting the testimony of co-defendant Frank Dowdy as there was no corroboration of the testimony; and (3) the trial court erred in giving a jury instruction on flight. Because Appellant filed an untimely motion for new trial, which resulted in the filing of an untimely notice of appeal, we must dismiss Appellant’s appeal.

The appellant, Kevin Rudd, was indicted for the first degree murder of his wife. After a jury trial, the appellant was found guilty of first degree murder and sentenced to life in prison. On appeal, the appellant argues: (1) the trial court improperly admitted propensity evidence in violation of Tennessee Rule of Evidence 404(b); (2) the trial court improperly denied a mistrial; and (3) the trial court improperly denied a motion in limine to exclude testimony that indicated the appellant engaged in shooting at other people. Because we determine that the trial court improperly admitted evidence in violation of Tennessee Rule of Evidence 404(b), we reverse the judgment of the trial court and remand for a new trial. The remaining issues are without merit.

The Petitioner, Cornell Poe, proceeding pro se, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief. In February 2006, the Petitioner filed a petition for postconviction relief collaterally attacking his convictions for aggravated burglary and Class D felony theft. The post-conviction court appointed counsel, and counsel filed an amended petition. Following an evidentiary hearing, the post-conviction court denied relief. Because the record before this court fails to indicate that the Petitioner’s court-appointed counsel was allowed to withdraw or that the Petitioner has waived his right to counsel on appeal, the judgment of the post-conviction court is vacated, and this case is remanded to the post-conviction court for reinstatement of the order denying post-conviction relief. Appointed counsel shall continue in her representation of the Petitioner on appeal, and the case shall proceed in accordance with the Tennessee Rules of Appellate Procedure.

This is a delayed appeal from a conviction for driving under the influence of an intoxicant (DUI). For this conviction, the Defendant, Larry Davis, received a sentence of eleven months and twentynine days in the Shelby County Workhouse. In this appeal, the Defendant raises several issues relating to the sufficiency of the evidence, focusing on whether the evidence was sufficient for the jury to determine that he was driving on a public road. The Defendant also contends that the State committed prosecutorial misconduct during closing argument by relating the complete language of the DUI statute to the jury, including driving in an apartment house complex. The Defendant also alleges error by the trial court’s failure to take curative action after the State’s comments. Finally, the Defendant argues that his arrest was not supported by probable cause because the misdemeanor offense was not committed in the officer’s presence. Following a review of the record, we conclude that the evidence is sufficient to support the Defendant’s conviction for DUI and that the Defendant’s remaining issues are waived. The judgment of the trial court is affirmed.

A Shelby County jury found the Appellant, Robert Austin, guilty of two counts of first degree premeditated murder and one count of criminal attempt to commit first degree premeditated murder. Following the penalty phase of the trial, the jury sentenced Austin to two terms of life imprisonment without parole. At a subsequent sentencing hearing, the trial court sentenced Austin to forty years, as a Range II offender, for the attempted first degree murder and ordered that all of his sentences run consecutively. On appeal, Austin presents the following issues: (1) whether the trial court erred in disallowing expert testimony regarding Austin’s capacity to form the requisite intent for intentional or knowing offenses; (2) whether the evidence is sufficient to support the convictions; and (3) whether the trial court erred in ordering consecutive sentencing. With regard to issue (1), we conclude that the trial court erred in excluding expert testimony; however, the error was harmless. The remaining issues are without merit. Accordingly, the judgments of conviction and the imposition of consecutive sentences are affirmed.

Petitioner, Randall Carver, filed a pro se petition for writ of error coram nobis and/or habeas corpus relief. The trial court treated the petition as one for post-conviction and summarily dismissed the petition. On appeal, this Court affirmed the post-conviction court’s dismissal of the petition. See Randall Carver v. State, No. M2002-02891-CCA-R3-CO, 2003 WL 21145572 (Tenn. Crim. App., at Nashville, May 16, 2003). Petitioner subsequently filed a petition for writ of habeas corpus, alleging numerous claims for relief. The trial court denied the petition without a hearing, determining that because Petitioner failed to produce material to the court for consideration and that because Petitioner was being held by the State of Kentucky on Kentucky charges all of Petitioner’s issues were moot. Petitioner appealed. On appeal, this Court, without reaching the merits of Petitioner’s argument, remanded the case for determination of “why the counsel who represented the petitioner in the lower court is not representing the petitioner on appeal.” See Randall Carver v. Tony Parker, Warden, No. W2005-00522-CCA-R3-HC, 2006 WL 140408, at *2 (Tenn. Crim. App., at Jackson, Jan. 18, 2006). On remand, the trial court learned that Petitioner had been granted parole on his underlying sentences in the State of Tennessee, waived extradition and was transferred to the custody of the State of Kentucky. Subsequently, the trial court entered an order denying the petition for writ of habeas corpus. Petitioner filed a timely notice of appeal. He argues that he is entitled to request habeas corpus relief while being incarcerated in Kentucky and that this Court should transfer the petition to the court in which he was originally convicted. Because an out-of-state resident may seek habeas corpus relief in Tennessee from a Tennessee conviction, see State v. Church, 987 S.W.2d 855, 857-58 (Tenn. Crim. App. 1998), and the supreme court recently determined in Joseph
Faulkner a/k/a Jerry Faulkner v. State, ___ S.W.3d ___, 2007 WL 1226831, at *6 (Tenn. Apr. 27, 2007), that a “prisoner serving concurrent state and federal sentences in a federal correctional institution may challenge his state convictions through the use of the state writ of habeas corpus,” we determine that the trial court did not lose jurisdiction to make a determination on the merits of Petitioner’s claim by virtue of Petitioner’s parole from his Tennessee convictions and incarceration in Kentucky. Therefore, we reverse and remand the judgment of the trial court for further proceedings consistent with this opinion.

The Petitioner, Jimmie Lee Hoyle, appeals the summary dismissal of his petition for post-conviction relief, arguing that it was error for the post-conviction court to deny relief without holding an evidentiary hearing, allowing him to amend his petition, or appointing counsel. Following our review, we conclude that the Petitioner stated a colorable claim in his petition. Accordingly, we reverse the post-conviction court’s order of dismissal and remand for further proceedings.

The Petitioner, Roy R. Williams, appeals the post-conviction court’s order dismissing his petition for post-conviction relief. The Petitioner argues that his conviction for murder during the perpetration of a felony should be set aside because his trial attorneys failed to properly investigate a possible insanity defense and because they coerced him to plead guilty by making him fearful of receiving the death penalty. Following our review, we affirm the post-conviction court’s order of dismissal.

The Defendant, Gamal Edham, appeals the trial court’s order denying his motion to withdraw his guilty plea to one count of selling beer to a minor, arguing that because of his limited ability to understand English, his guilty plea was not knowingly and voluntarily entered. Following our review, we affirm the judgment of the trial court.

A Blount County jury convicted the defendant, Margie Frances Hamby, of attempted theft of property valued under $500, and the trial court sentenced her to six months, with thirty days in jail and the balance to be served on supervised probation. On appeal, the defendant contends that the trial court erred in not granting her full probation. We affirm the judgment of the trial court.

Following a jury trial, the petitioner, Robert S. Barnes, was convicted of reckless endangerment, attempted rape, robbery, aggravated burglary, and assault. For his convictions, the petitioner was sentenced as a career offender to an effective sentence of forty-five years for the felony convictions, plus consecutive sentences of eleven months and twenty-nine days for each of the two misdemeanor convictions. On direct appeal, this court affirmed the judgments of the trial court. State v. Robert Sanford Barnes, No. W2003-02967-CCA-R3-CD, 2005 WL 331376 (Tenn. Crim. App., at Jackson, Feb. 11, 2005). The petitioner filed a timely petition for post-conviction relief which the postconviction court subsequently denied after an evidentiary hearing. The petitioner now appeals. In this appeal, the petitioner contends that his trial counsel was ineffective. Following a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

The defendant, William Joshua Harwood, appeals as of right from his Hamilton County Criminal Court convictions for attempt to manufacture methamphetamine and two counts of theft of property valued at over one thousand dollars. On appeal, he argues that the evidence is insufficient to support his convictions because they are based upon the uncorroborated testimony of an accomplice. The state concedes in its brief that the convictions should be reversed and dismissed for this reason. Following our review, we agree. Accordingly, the convictions are reversed and dismissed.

The Petitioner, Sherman Clark, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The Petitioner, Allen Oliver, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to assert a ground that would entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

The defendant, Nathaniel Starr, appeals as of right his bench trial conviction for aggravated robbery, a Class B felony, for which he received a sentence of twenty-five years as a Range III, persistent offender. On appeal, he alleges that the evidence is insufficient to support his conviction for aggravated robbery and that the trial court erred in finding him to be a persistent offender. Following our review, we affirm the judgment of the trial court.

The petitioner, Neil Lincoln Miller, appeals the summary dismissal of his petition for habeas corpus relief. He contends that his sentence is illegal. Because the record and law establish that the petitioner is not entitled to habeas corpus relief, we affirm the judgment of the trial court.

The Appellant, Terrance Burke, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On appeal, Burke argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After a review of the record, we affirm the denial of post-conviction relief.

The defendant, Jack N. Taylor, was convicted of robbery, a Class C felony, and sentenced to three years in the community corrections program. On appeal, he argues that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

I am, respectfully, unable to join in the majority’s reversal of the trial court’s judgment of conviction due to the insufficiency of the evidence, although I concur in the majority opinion regarding all other issues. The majority concludes that there is insufficient evidence upon which a rational trier of fact could conclude that the Defendant, knowingly, by other than accidental means, inflicted serious injury on this victim. Specifically, the majority concludes that there is a failure of evidence with regard to the Defendant’s mens rea.

A Knox County jury convicted the Defendant of aggravated assault, one count of theft, Class D felony theft, and misdemeanor vandalism, and the trial court sentenced him to an effective sentence of thirteen years. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions for aggravated assault and theft; (2) the trial court improperly allowed testimony that the Defendant had kidnapped the victim the night before this incident; and (3) the trial court improperly imposed consecutive sentences. Finding that there exists no error, we affirm the judgments of the trial court.

The defendant, Scott Christopher Magness, appeals as of right from the sentence of confinement imposed by the Hardin County Circuit Court for his conviction of attempted aggravated sexual battery, a Class C felony. As a Range I, standard offender, the defendant received a sentence of six  years in the Tennessee Department of Correction. On appeal, the defendant contends that the trial court erred by denying alternative sentencing. We affirm the trial court.

The defendant, David Harold Hanson, was convicted of aggravated child abuse a Class A felony, and received a sentence of eighteen years imprisonment. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred in refusing to instruct the jury on the definition of “accidental means” as submitted by the defendant; (3) whether the trial court improperly instructed the jury on the “knowing” element of aggravated child abuse; and (4) whether the trial court erred by giving sequential jury instructions. Following our review of the record, the parties’ briefs and the applicable law, we conclude that the evidence was insufficient to prove that the defendant possessed the requisite mental state for aggravated child abuse; and therefore, we reverse the judgment of the trial court and dismiss the case.

The defendant, Marty Michelle Clark, was convicted of attempted aggravated burglary, a Class D felony, and was sentenced by the trial court as a Range II offender to six years in confinement. The defendant appeals his conviction, arguing that the trial court lacked sufficient evidence to sustain his nconviction. Upon review of the full record and the applicable law, we affirm the judgment of  the trial court.

The defendant, Jarvis Harris, was convicted of first degree premeditated murder and attempted first degree murder and sentenced to concurrent terms of life imprisonment and eighteen years. On appeal, he argues: (1) the trial court erred in denying his motion in limine to exclude references to gang affiliation and the State made improper comments about gang membership during opening and closing statements; (2) the trial court erred in denying his motion to suppress his statements; and (3) the trial court imposed an excessive sentence. Based on our review, we affirm the judgments of conviction but remand for appropriate resentencing for the attempted first degree murder conviction.