State of Tennessee v. Erika Y. Johnson ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 8, 2011 Session
STATE OF TENNESSEE v. ERIKA Y. JOHNSON
Appeal from the Circuit Court for Williamson County
No. I-CR013149-B Jeffrey S. Bivins, Judge
No. M2010-01176-CCA-R3-CD - Filed May 11, 2011
The Defendant, Erika Y. Johnson, appeals as of right from the Williamson County Circuit
Court’s revocation of her probation and order that she serve the remainder of her sentence
in confinement. The Defendant contends that the trial court erred by ordering her to serve
the remainder of her sentence in confinement. Following our review, we affirm the judgment
of the trial court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.
Erika Y. Johnson, Madison, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Kim R. Helper, District Attorney General; and Sean Bernard Duddy, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
On January 14, 2008, the Defendant was indicted on one count of simple possession
of marijuana. The Defendant subsequently pled guilty to the charge on September 4, 2008,
and was sentenced to 11 months and 29 days to be served on probation. On November 1,
2008, a probation violation complaint was issued against the Defendant alleging that she had
failed to pay court costs and failed a drug test. The Defendant admitted the violation and the
trial court revoked and reinstated the probation for 11 months and 29 days with the
requirement that the Defendant serve 20 days in the county jail. On December 21, 2009, a
second probation violation complaint was issued against the Defendant alleging that she had
failed to pay court costs and tested positive for marijuana and benzodiazepines. The
Defendant again admitted the violation but requested a hearing regarding her sentence.
Following the hearing, the trial court ordered the Defendant to serve the remainder of her
sentence in confinement.
The Defendant contends that the trial court erred by ordering her to serve the
remainder of her sentence in confinement. The Defendant argues that being “incarcerated
is inappropriate and unnecessary” for her because she regularly reports to her probation
officer, “has passed recent drug screens,” and “[i]n two years of probation” she “has been out
of trouble with the law.” The State responds that the Defendant has waived this issue by
failing to provide a complete record for appeal. Alternatively, the State responds that the trial
court did not err by ordering the Defendant to serve the remainder of her sentence in
confinement.
The record on appeal contains only the “technical record” and does not include a
transcript of the probation revocation hearing. Without a transcript of the hearing, we cannot
conclude that the trial court erred by ordering the Defendant to serve the remainder of her
sentence in confinement. It is the Defendant’s duty to prepare the record “as is necessary to
convey a fair, accurate and complete account of what transpired with respect to those issues
which are the bases of appeal.” Tenn. R. App. P. 24(b). A record that “is incomplete and
does not contain a transcript of the proceedings relevant to an issue presented for review, or
portions of the record upon which the party relies” precludes an appellate court from
considering the issue. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993) (citing State
v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)). When a party fails to provide
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) (citing Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)). The
Defendant has failed to properly preserve this issue for appeal. Accordingly, we affirm the
judgment of the trial court.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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