State v. Robert Booher

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 17, 1997
• Docket: 01C01-9612-CC-00525
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED SEPTEMBE R SESSION, 1997 December 17, 1997

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9612-CC-00525 ) Appellee, ) ) HUMPHREYS CO UNTY ) V. ) ) HON. ROBERT E. BURCH, JUDGE ROBERT K. BOOHER, ) ) Appe llant. ) (VIOLATION OF RE GISTR ATION L AW)

FOR THE APPELLANT: FOR THE APPELLEE:

ROB ERT K. BO OHE R, pro se JOHN KNOX WALKUP 104 C apps Hill Attorney General & Reporter Wa verly, TN 37185 JANIS L. TURNER Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

DAN M. ALSOBROOKS District Attorney General

GEORGE C. SEXTON Assistant District Attorney General Humphreys County Courthouse Room 205 Waverly, TN 37185

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION The Defen dant, Robert K. Booher, appeals as of right from the judgment

of the Circ uit Court o f Hum phreys C ounty. Following a jury trial, the Defendant

was convicted of driving without proper vehicle registration and driving without a

license, both Class C misdemeanors. In this pro se appeal, Defendant raises

many issues which can co llectively b e sum mariz ed as challe nging the

constitution ality of the applicable motor vehicle statutes and the denial of

adequ ate due proces s of law. W e affirm the judgm ents of the trial court.

From the sparse record, it appears that on Nove mbe r 20, 19 95, W averly

police officer W .B. Frazie r saw the Defendant driving a vehicle without proper

registration plates. See Tenn . Code Ann. § 5 5-3-102 . Upon stopping the vehicle,

Officer Frazier discovered that Defendant also did not possess a valid Tennessee

driver’s licen se. See Tenn. Code Ann. § 55-50-301.

The jury found the Defenda nt guilty of both offenses . The trial court

imposed a suspended sentence of 30 days for each offense and fined him a total

of $100.

The record on ap peal c ontain s no motion for new trial filed by the

Defen dant. Rule 3 (e) of th e Te nnes see R ules o f Appe llate Pro cedu re state s in

part:

[I]n all cases tried by a ju ry, no issue presented for review shall b e pred icated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case , or other ground upon which a new trial is sought, unless the same was s pecific ally

-2- stated in a m otion fo r a new trial; otherwise, such issues will be treated as waived.

This rule do es no t enco mpa ss issu es wh ich, if decid ed favo rably to the accused,

would result in the dismissal of the pros ecution. State v. Keel, 882 S.W.2d 410,

415-16 (Tenn. Crim. App. 1994). Since the relief requested, if granted in the

instant case, would be dismissal of the prosecution, then the waiver provision

contained in Rule 3(e) is not applicable. Thus, the issues presented by

Defendant would normally be considered on the merits.

Howeve r, the Defendant has not included the transcript of the trial or any

pre-trial hearings as part of the record o n appe al. It is the app ellant’s duty to

“have prepa red a tra nscrip t of suc h part o f the evid ence or proc eedin gs as is

necessa ry to convey a fair, accurate and complete account of what transpired

with respec t to those iss ues tha t are the bases of appeal.” Tenn. R. App. P.

24(b). Wh en neces sary parts of the record are n ot included on appeal, the co urt

must presume that the trial court’s ruling was correct. State v. Oody, 823 S.W.2d

554, 559 (T enn. C rim. App . 1991). Therefore, even if review of the issues

presented is proper in the instant case, this Court must defer to the findings of the

trial court sinc e no tran script is includ ed in the re cord.

Furthermore, Defendant was also convicted at a different trial for the same

type of offen ses a s in the instan t case , but wh ich occurred on a different date.

The identical issues presented in the case sub judice were presented in the direct

appeal by Defendant from the other convictions, and were resolved by another

panel of this Cou rt against D efenda nt. Even if the issues w ere not waived by

failure to file a complete record, we would adopt the reasoning and analysis of

-3- the panel of this Co urt in State v. Robert K. Booher, C.C.A. No. 01C01-9604-CC-

00131, Hum phrey s Cou nty (Te nn. C rim. A pp., N ashville , filed Au g. 22, 1 997) in

finding that the issues presented in the case sub judice are witho ut merit.

Accordingly, the judgments of the trial court are affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Judge

___________________________________ J. CURWO OD W ITT, JR., Judge

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