State of Tennessee v. Larry Davis ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 7, 2006 Session
STATE OF TENNESSEE v. LARRY DAVIS
Direct Appeal from the Criminal Court for Shelby County
No. 02-08243 John P. Colton, Jr., Judge
No. W2005-01341-CCA-R3-CD - Filed March 1, 2006
The appellant, Larry Davis, was convicted by a jury in the Shelby County Criminal Court of driving
under the influence (DUI), a Class A misdemeanor. He received a sentence of eleven months and
twenty-nine days in the Shelby County Workhouse. On appeal, the appellant raises several issues
relating to the sufficiency of the evidence. Upon our review of the record and the parties’ briefs, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH , JJ., joined.
Randall B. Tolley (on appeal) and Johnny Pritchard (at trial), Memphis, Tennessee, for the appellant,
Larry Davis.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jack Irvine and Greg Gilbert, Assistant District
Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The appellant was charged and convicted of driving under the influence on a public highway
in Tennessee. He filed a motion for new trial, complaining that the “verdict was contrary to law,”
the “record in this cause is insufficient to establish guilt beyond a reasonable doubt as to the elements
charged in the indictment,” and “[t]here was no probable cause to establish a DUI arrest and this
should have been established prior to or during trial and this charge should be dismissed.” The trial
court overrruled the appellant’s motion for new trial, and the appellant now appeals.
II. Analysis
On appeal, the petitioner raises the following issues for our review:
[(1)] Whether the verdict is contrary to law and cannot be upheld.
[(2)] Whether the evidence in this cause is insufficient to sustain a
conviction as to the indictment and the jury charge of driving on a
public highway where there was no proof of such.
[(3)] Whether the trial court erred in refusing to give a curative
instruction after the State argued to the jury that Larry Davis could be
convicted of DUI for “driving” in a parking lot.
[(4)] Whether the State committed prosecutorial misconduct by
arguing law that was not being charged to the jury in order to convict
Larry Davis of driving in an apartment complex parking lot.
[(5)] Whether the trial court erred in not granting the Motion for New
Trial/Judgment of Acquittal.
[(6)] Whether there was probable cause to establish a DUI arrest.
Initially, we note that issues three and four are waived because the appellant failed to include
these issues in his motion for new trial. See Tenn. R. App. P. 3(e). Additionally, the appellant’s
sixth issue is waived for failure to raise the issue in a motion to suppress prior to trial. See Tenn. R.
Crim. P. 12(b)(3) and (f). Furthermore, even more importantly, the appellant failed to include in the
record for our review a transcript of the trial or a statement of evidence chronicling the proof
adduced at trial. It is the appellant’s burden to compile a sufficient record for our review. See
Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997).
The Rules of Appellate Procedure provide
If no stenographic report, substantially verbatim recital or
transcript of the evidence or proceedings is available, the appellant
shall prepare a statement of the evidence or proceedings from the best
available means, including the appellant’s recollection. The
statement should convey a fair, accurate and complete account of
what transpired with respect to those issues that are the bases of
appeal. The statement, certified by the appellant or the appellant’s
counsel as an accurate account of the proceedings, shall be filed with
the clerk of the trial court within 90 days after filing the notice of
appeal . . . . If the appellee has objections to the statement as filed,
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the appellee shall file objections thereto with the clerk of the trial
court within fifteen days after service of the declaration and notice of
the filing of the statement. Any differences regarding the statement
shall be settled as set forth in subdivision (e) of this rule.
Tenn. R. App. P. 24(c). All of the appellant’s issues revolve around facts adduced at trial. Because
the appellant has failed to include a transcript or a statement of the evidence, we are unable to
determine what facts were proven during the course of the proceedings. In short, we conclude that
we are unable to address any of the appellant’s issues due to the inadequacy of the record. “In the
absence of an adequate record on appeal, this court must presume that the trial court’s rulings were
supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).
The appellant is not entitled to relief.
III. Conclusion
Based upon the foregoing, we affirm the judgment of the trial court.
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NORMA McGEE OGLE, JUDGE
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