State v. Robert Booher ( 1997 )

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
-4-