APPELLATE COURT OPINIONS

This case is before the Court on an interlocutory appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.1 In this extraordinary appeal, Appellant asserts that the trial court erred in granting temporary custody of her two children to their paternal grandparents during the pendency of the underlying divorce action. Specifically, she claims that the trial court erred in failing to conduct an evidentiary hearing and in considering only the guardian ad litem’s reports in making its custody determination. Having carefully reviewed the issues raised by the parties, we hold that the trial court erred in basing its decision to change custody solely upon the guardian ad litem’s reports. Accordingly, we reverse the judgment of the trial court awarding custody to the grandparents and
remand the case for proceedings consistent with this opinion.

The defendant, Frankie Donald Releford, brings this direct appeal of his convictions for possession of cocaine with intent to sell or deliver, possession of marijuana, possession of drug paraphernalia, to wit, rolling papers, and destruction of evidence. The trial court sentenced the defendant to serve an aggregate eleven-year sentence. In this appeal, the defendant alleges (1) that the trial court erroneously denied his motion to suppress drugs and drug paraphernalia seized in a search incident to his arrest, (2) that the trial court erroneously allowed a witness to testify regarding the results of two spectrophotometer tests without sufficiently establishing the reliability of those instruments, (3) that the evidence is insufficient to support his convictions, (4) that the trial court erred by refusing to grant his motion for new trial on the basis of newly discovered evidence, and (5) that the trial court improperly sentenced him. After reviewing the record and applicable case law, we find that none of the defendant's allegations merit relief and therefore affirm the judgment of conviction.

A Shelby County jury convicted the defendant, Gerald Powers, of first degree felony murder and aggravated robbery. He was sentenced to death for the felony murder charge and to a consecutive thirty-year prison sentence for the aggravated robbery charge. The Court of  Criminal Appeals affirmed the conviction and death sentence for the felony murder but reduced Powers’ sentence for the aggravated robbery to twenty years. Thereafter, the case was automatically docketed in this Court pursuant to Tennessee Code Annotated section 39-13-206(a)(1) (1997). We entered an order designating the following issues for oral argument:1 1) whether allowing Powers’ wife to testify violated the confidential marital communications privilege in Tennessee Code  Annotated section 24-1-201(b) (Supp. 1998); 2) whether the trial court erred in excluding evidence and restricting cross-examination indicating that other persons might have had the motive and opportunity to kill the victim; 3) whether the deposition of Margaret York was admissible; 4) whether the evidence was sufficient to establish beyond a reasonable doubt the aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(6) (Supp. 1996); 5) whether the facts underlying Powers’ prior violent felony convictions were admissible; 6) whether the trial court erred in not allowing the defense to attack the character of the victim at the sentencing hearing; and 7) whether the sentence of death is disproportionate, and all other issues mandated by Tennessee Code Annotated section 39-13-206(c)(1) (1997). Having carefully reviewed these issues and the issue of  identification testimony raised by Powers, we find no merit to his  arguments. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

The defendant appeals his resentencing of 162 years, 11months and 29 days, as excessive. The defendant failed to provide this Court with transcripts of the sentencing hearing, the presentence report, or the guilty plea submission hearing. Therefore, the record is insufficient and incomplete for our review. We affirm the judgments of the trial court.

The defendants, Bobby Pryor and his son-in-law, Randy Ray, were indicted by a Marion County Grand Jury for one count of aggravated assault and one count of vandalism over $1000 based on a November 8, 1999, altercation with the victim, Randy Hutchins. A third count of the indictment charged Pryor with another aggravated assault against the same victim, based on a separate incident on November 8, 1999, in which Ray was not involved. At the conclusion of the defendants' joint trial, Pryor was found guilty of assault, a Class A misdemeanor, in count one; vandalism over $1000, a Class D felony, in count two; and reckless endangerment with a deadly weapon, a Class E felony, in count three. Ray was found guilty of reckless endangerment with a deadly weapon, a Class E felony, in count one; and vandalism of $500 or less, a Class A misdemeanor, in count two. Following the denial of their motions for new trial, both defendants filed timely appeals to this court. However, during the pendency of the appeal, Pryor's counsel filed a suggestion of Pryor's death, followed by a copy of his death certificate. Consequently, on May 1, 2002, this court entered an order declaring that the criminal proceedings against Pryor were abated by his death, leaving only Ray's appeal to continue. Ray raises four issues for our review: (1) whether he was denied a fair trial by the victim's allegedly having tampered with the jury; (2) whether he was denied his right to an impartial trial judge; (3) whether the evidence was sufficient to support his conviction for vandalism; and (4) whether count one of the indictment was fatally defective. Based on our review of the record and of applicable law, we affirm the judgment of the trial court.

A Shelby County Criminal Court jury convicted the defendant, Kevin Jones, of aggravated child abuse, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty years in confinement. The defendant appeals, claiming (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by failing to grant his request for a mistrial when a police officer testified that the defendant refused to give a statement to the police; (3) that the trial court should have ordered a mistrial when the state failed to provide him with Jencks material; and (4) that his sentence is excessive. We affirm the judgment of the trial court.

A Shelby County Criminal Court jury convicted the defendant, Kevin Jones, of aggravated child abuse, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty years in confinement. The defendant appeals, claiming (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by failing to grant his request for a mistrial when a police officer testified that the defendant refused to give a statement to the police; (3) that the trial court should have ordered a mistrial when the state failed to provide him with Jencks material; and (4) that his sentence is excessive. We affirm the judgment of the trial court.

The petitioner, Jeremy Kyle Massey, appeals the Lawrence County Circuit Court’s denial of his petition for post-conviction relief. He challenges his conviction pursuant to a plea agreement with the state and contends that he received ineffective assistance of counsel and that his guilty plea was
involuntary and constitutionally deficient. He further complains that the post-conviction court erroneously excluded certain testimony as irrelevant. We affirm the denial of post-conviction relief.

Patrick Wingate appeals the Bedford County Circuit Court's summary dismissal of his petition for post-conviction relief. He is serving sentences of life and 25 years in the Department of Correction as a result of his 1998 convictions of first-degree murder and arson. This court affirmed the convictions. See State v. Patrick Wingate, No. M1999-00624-CCA-R3-CD (Tenn. Crim. App., Nashville, May 25, 2000), perm. app. denied (Tenn. 2000). Wingate's post-conviction petition challenged (1) the effectiveness of his trial counsel's assistance and (2) the sufficiency of the convicting evidence. On April 30, 2001, the post-conviction court entered an order dismissing the petition on grounds that it contained mere conclusions of law and bare, unsupported factual allegations. Because we agree that the post-conviction petition was properly dismissed, we affirm.

After a Giles County Circuit Court jury convicted the defendant, Robert S. Lutrick, of aggravated assault, a Class C felony, he applied to the court for an order of diversion. The trial court denied the request and sentenced the defendant to the minimum Range I sentence of three years, to be served on probation. The defendant now appeals the denial of judicial diversion. Upon review, we affirm.

The Defendant, Rufus Steven Johns, entered a nolo contendere plea to illegally registering to vote, a class E felony. After a sentencing hearing, the trial court sentenced the Defendant as a Range I standard offender to eighteen months to be served on probation. In this appeal as of right, he raises three issues: (1) whether the district attorney general abused his discretion by denying the Defendant pretrial diversion, (2) whether the trial court abused its discretion by refusing to grant judicial diversion, and (3) whether the trial court imposed an excessive sentence. We affirm the judgment of the trial court.

In 1995, petitioner was convicted of first degree murder and attempted first degree murder and sentenced to consecutive sentences of life and fifteen years, respectively. Petitioner now files for habeas corpus relief, alleging he was convicted based on defective indictments. The trial court summarily dismissed petitioner's claim. We affirm the trial court's dismissal.

The defendant appeals his conviction and sentence for rape of a child alleging insufficient evidence and excessive punishment. The trial court failed to apply pre-July 1995 sentencing guidelines for this April 1995 crime, and the trial court erred in applying one enhancement factor. After careful review, we affirm the conviction and remand for a new sentence.

The defendant, Ricky E. Pullen, was indicted by a Rutherford County Grand Jury on one count of rape of a child and one count of aggravated sexual battery. After a jury trial, the defendant was convicted of aggravated sexual battery and acquitted of child rape. The trial court sentenced him as a violent offender to eight years in the Department of Correction. Only one issue is raised on appeal: whether the evidence was sufficient to convict the defendant of aggravated sexual battery. We conclude that the evidence was sufficient and affirm the conviction.