APPELLATE COURT OPINIONS

I respectfully dissent from the majority’s opinion in this Public Records Act case. I would reverse the trial court’s dismissal of the claim against the Clerk and Master and the deputy clerk and vacate the grant of summary judgment as to the judge’s assistant.

A Shelby County jury found the Appellant, Demario Tabb, guilty of the first degree felony murder of Floricelda Reynoso Ambrocio; the first degree felony murder of the unnamed, viable fetus of Floricelda Ambrocio; and the attempted aggravated robbery of Rodrigo Ramirez. At the penalty phase of the trial, the jury fixed Tabb’s punishment at life without the possibility of parole for each murder conviction. Following a separate sentencing hearing, the trial court sentenced Tabb to five years imprisonment for his Class C felony conviction for attempted aggravated robbery and ordered that all sentences be served concurrently. On appeal, Tabb presents the following issues for ourreview: (1) whether his statement to police should have been suppressed because it was obtained inviolation of his constitutional right to counsel; (2) whether the statement was properly admitted asrebuttal proof; and (3) “whether [the trial] court erred in its use of curative instructions to [the] jury.”Following review, we find no error and affirm the judgments of conviction.

We first decided this appeal in 2005. Our decision was vacated by the United States Supreme Court and the case was remanded to us for reconsideration in light of Cunningham v. California, 549 U.S. --, 127 S. Ct. 856 (2007). We requested and received supplemental briefing from the parties addressing any Cunningham issues. When this case was previously before this Court, the Defendant challenged the sufficiency of the evidence to sustain his aggravated robbery conviction. The Defendant received an enhanced sentence of eighteen years as a Range II, multiple offender for this conviction, but the trial court subsequently reduced his sentence to fifteen years based upon Blakely v. Washington, 542 U.S. 296 (2004). Originally, the State appealed the modified sentence, arguing that the trial court erred in reducing the Defendant’s sentence, and we agreed. Upon further consideration of the matter, we conclude, and the State now concedes, that sentencing was proper and affirm the judgment in its entirety. We reissue our previous opinion as follows with a new section dealing with the Cunningham issues.

The defendant was convicted by a Madison County jury of theft of property valued at $10,000 or more, a Class C felony, and sentenced to five years in prison as a Range I, standard offender. On appeal, the defendant contends that the evidence produced at trial was insufficient to support the jury’s guilty verdict, and he also contends that his sentence was excessive, both in the length of the sentence and the trial court’s failure to impose an alternative sentence. After reviewing the record, we conclude that the evidence produced at trial was sufficient to support the defendant’s conviction, and that the sentence imposed by the trial court was appropriate. Accordingly, we affirm the judgment of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issues on appeal involve whether weeks spent absent from work due to a strike are included when calculating an employee’s average weekly wage. We hold that the trial court erred in excluding the weeks spent on strike and modify the award to reflect the proper calculation of the employee’s average weekly wage.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee did not sustain a permanent disability and was not entitled to temporary total disability benefits. The employee has appealed, contending that the trail court erred by giving more weight to the opinion of the treating physician than to the evaluating physician and by finding that he did not sustain a permanent injury. We affirm the trial court’s ruling in all respects.

I fully concur in Judge Swiney’s Opinion but wish to elaborate on the fact that the Judge had custody of the file that the plaintiff sought and was charged with safekeeping and protection of the file.

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 defendant, William Joe Murphy, was convicted by a McNairy County Jury of aggravated assault, a Class C felony. Subsequently, he was sentenced to five years in confinement as a Range I offender. On appeal, the defendant presents two issues for review: (1) whether the evidence was sufficient to sustain his conviction; and (2) whether the trial court improperly enhanced his sentence. Upon review of the full record and the applicable law, we affirm the judgment of the trial court.

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.

The defendant, Maurice Emery, appeals from his Gibson County Circuit Court convictions of possession with intent to sell one-half gram or more of cocaine, a Class B felony, possession of marijuana, a Class A misdemeanor, and possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-17-417, -418, -425. The defendant, a Range II multiple offender, is serving an effective twelve-year sentence in the Department of Correction for these convictions. He claims (1) that the trial court erred in denying his motion to sever his case from that of his co-defendant, (2) that his arrest was not supported by probable cause, and (3) that he was denied the effective assistance of counsel. We hold that the defendant is not entitled to relief and affirm.

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 appeal involves an award of discretionary costs after a voluntary dismissal. The plaintiff estate filed a lawsuit against the defendant nursing home, alleging abuse and neglect of the plaintiff’s decedent. The defendant nursing home filed a motion for summary judgment and a motion to exclude the plaintiff’s expert. The motion for summary judgment was denied, but the motion to exclude the plaintiff’s expert was granted. The plaintiff then filed a notice of voluntary nonsuit. Consequently, the trial court entered an order of voluntary dismissal without prejudice. After entry of this order, the defendant nursing home filed a motion for discretionary costs, pursuant to Rule 54.04(2) of the Tennessee Rules of Civil Procedure. The trial court granted the motion, and entered an order assessing the costs against the plaintiff estate. The plaintiff estate now appeals, arguing that the defendant nursing home was not entitled to an award of discretionary costs because it obtained no relief on the merits of the case and therefore was not a “prevailing party.” We affirm, finding that Rule 54.04(2) expressly authorizes the trial court, in its discretion, to award discretionary costs to a defendant in a lawsuit that is voluntarily dismissed without prejudice.

This appeal involves a sale of equipment, made by a decedent to his friend, eleven days before he died. The administrator of the decedent’s estate filed a complaint to set aside the sale alleging fraud, undue influence, and inadequate consideration. Following a bench trial, the trial court set aside the sale and ordered the estate to reimburse the purchase money to the buyers. We reverse.

I must respectfully dissent from the majority opinion in this case.

I believe that the trial court’s decision was based on the trial judge’s determination of the witnesses’ credibility and should be affirmed on the ground of inadequate consideration. The trial judge made a factual finding that the equipment at issue had a value of $79,550, and there has been no appeal of that finding. Even according to Mr. Volner’s testimony, he paid no more than $20,000 for all of this equipment, approximately 25% of its value. This inadequacy of consideration does not stand alone; it is accompanied by “inequitable incidents” or “badges of fraud.” A “badge of fraud” can be “any fact that throws suspicion on the transaction and calls for an explanation.” Reagan v. Connelly, No. E2000-00451-COA-R3-CV, 2000 WL 1661524, at *4 (Tenn. Ct. App. Nov. 6, 2000) (quoting Macon Bank & Trust Co. v. Holland, 715 S.W.2d 347, 349 (Tenn. Ct. App. 1986). These include inadequate consideration for the transfer, a family or friendship relationship between the transferor and the transferee, and a lack of explanation for the suspicious transaction. Stevenson v. Hicks (In re: Hicks), 176 Bankr. 466, 470 (Bankr. W.D. Tenn. 1995). Similarly, “inequitable incidents” indicating fraud include undue advantage, ignorance, sickness, old age, incapacities, and the like. Estate of Fischer, ex rel Meyers v. Rogers, 2002 WL 31895721, at *5 (Tenn. Ct. Appl. Dec. 31, 2002). Where one or more badges of fraud are present, a presumption of fraud arises “and consequently shift the burden of disproving fraud to the defendant.” Id. (quoting Stevenson v. Hicks (In re: Hicks), 176 Bankr. 466, 470 9Bankr. W.D. Tenn. 1995)). In this case, there are numerous such badges of fraud and inequitable incidents.

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.

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.

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 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.

The Trial Court denied the husband Tenn. R. Civ. P. 60.02 relief from a default judgment in the divorce case. We grant a new trial as to equitable division of marital property.

We granted permission to appeal to determine whether income from a nonrecurring capital gain may be considered in determining a parent’s gross income for purposes of modifying child support. We hold that income from an isolated or “one-time” capital gain must be included in calculating gross income and that the trial court erred in dismissing the petition to modify child support. Accordingly, we affirm the judgment of the Court of Appeals and remand this case for calculation of child support pursuant to the Child Support Guidelines. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed; Case Remanded
 

We granted permission to appeal to determine whether income from a nonrecurring capital gain may be considered in determining a parent’s gross income for purposes of modifying child support. We hold that income from an isolated or “one-time” capital gain must be included in calculating gross income and that the trial court erred in dismissing the petition to modify child support. Accordingly, we affirm the judgment of the Court of Appeals and remand this case for calculation of child support pursuant to the Child Support Guidelines. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed; Case Remanded