### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON January 7, 2003 Se ssion

STATE OF TENN ESSEE v. CARLTO N LEE McALISTER

Direct Appeal from the Circuit Court for Carroll County No. 20CR1620 C. Creed McGinley, Judge

No. W2002-00454-CCA-R3-CD - Filed April 3, 2003

The defendant appeals his conviction for DUI - second offense

and his se

ntence o f sixty

days. The defenda nt conten ds the evi dence isinsuffic ient to sust ain his conviction, more specifically that he

was not impaired while driving or on a public road. The defendant also argues that his sentence of sixty days is excessive. We conclude the evidence i s suffici ent t o sustain his conviction. The defendant failed to include t he sente ncing hearing

transcr ipt, thus barring this Court from reviewing his argument concerning sente ncing. We affirm the judgment from the trial cour t as modified.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined.

Benjamin S. Dempsey , Huntingdon, Tennessee, for the appellant, Carlton L ee McAlister.

Paul G. Summers, Attorney Gene ral andReporter; John H. Bledsoe, Assistant Attorney Gene

ral; G. Robert Radford , Distric t Attorne y General ; and Elea

nor Cahill , Assistan

t District Attorney Genera l, for the appellee, State of Tennessee.

OPINION

The def end ant app eal s hi s co nvi cti on f or D UI - second of fense. At the conclusion of his sentencing hearing, the defendant was se ntenced to ll months, 29 days. The trial court

ordered the defendant to serve

60 days in the county

jail with the remainder on supervised probation. The trial
court suspende d the def

endant’ s license

for two yea

rs and fined him six hundred dollars ($600). The defendant raises si xteen issue s for our appella te review. We conclude that issues (1), (2), (3) (4), (9), (11), (12), (13), and (16) all conce rn th e s uf fi ci en cy o f e vi de nc e a nd ar e a dd re ss ed ac co rd in gl y. Issues (7) and (8) concern sentencing and are addressed

as such. Issues (5), (6), (10) , (14), and (15)1 The identity of the caller to the Ca rroll C ounty S heriff’s D epa rtmen t is unkno wn. The defendant testi fied t hat

someone call ed to report that he “had cut his arms a ll to piec es and was trying to kill himse lf .” Throughout the trial, the basis o f the initial call is no t discuss ed.

-2- are not supported by an ar gument with citation s to authorities and appropriate referenc es to the record; therefore, they

are deemed waived. See T.R.A.P. 27(a)(7).

I. Facts

Charles Brey

testifie d that he o wns a tra iler par k in Carroll County which consists of eleven trailers and one h ouse, loc ated on Ch arles L ane and Patsy Lane. He desc

ribed and exhibited a sketch of his propert

y. H e said tha

t a lady associa ted with “ 911” eme

rgenc y sy stems came out to the trailer park and named the streets. He said that each trailer a nd the house has its own street number. He said that the d efenda nt rents a trailer from him on

Patsy Lane . He said

that during the evening hours of July 21, 2000, he

receiv ed a distu

rbance call ag ainst the d

efenda nt. 1 He said th at when h

e got to the trailer park, he saw the defendant c ome out of his trailer and ge t into his vehicle. He said the defendant “cranked up” his vehicle, ba cked down Patsy L

ane and pulled up to the foot of Fesmire Road. He said the defendant then backed up to the def endant’s trailer.

On cross-examination, Mr. Brey testified that the defend ant lives on P atsy Lane , which is a

lso considered

th e d ef en da nt ’s dr iv ew ay. He said that Patsy L ane is not a public road, and he maintains the road. He said that Fesmire Road, which is a paved road in front of the trailer par k, is maintained by the county. He sa

id that he did not see the defendant drive up and down Fesmire

Road. He

said he drew a sketch of his property

because he wanted to measure it and said the ske tch shows how the trailer park has one entrance, then forks off with two trailers on one fork and two trailers on the other fork. He said th

e “911” person w

ho named t

he stree ts is not asso ciated w ith the county . The def ense counsel asked Mr. Brey

to look at some pictures and tell what they depicted. He said the pictures depictedthe defendant’s truck and it s loca tion on th e night of the dist urban ce. He s aid garb age pickup and mail delivery take place on Fesmire Road. He said that the only people that drive down the roads in t

he traile r park a re those people w ho live the

re. He s aid that he saw th e defend ant’s vehicle around 11:00 p.m. or 11:30 p.m . He said th e defendant did no t appear to have pr

oblems drivi ng. He said he has called the Sheriff’s Department a fe w times to have them

come out to the trailer park to help him “support the laws on some of the driveway s.”

On redirect-examination, Mr. Brey testified that he ma

intains the

roads in the trailer park for the occupants. He said that guests of the trailer pa rk also use those roads. He said he received the complaint on the defendant, arrived about ten minutes before the officers arrived, and left when the officers did. He said that he sees the defenda nt from time

to time, and he does not alway s see him using a walking

cane. O n recro ss-examina tion, Mr. B rey

testif ied that he knew the defendant sometimes walks with a cane. He said the defendant sa ys he g oes to the V.A. for his medical problems. He said the defendant walks with a limp.-3-

Serg eant Jeff Hoppe

r, shift su pervisor with the Ca

rroll Coun

ty Sh eriff’ s Departm

ent, testified that he answered a call around 11:00 p.m. or 11:30 p.m. on the night of

July 2 1, 2000, to

respond t o
a complaint at the intersection of Patsy L ane and Fesmire Road. He said that when he arrived on the
scene, the defendant was inside his residence. He said that he and Deputy Mark Hedge, who arrived

on the scene after him, talked to Mr. Brey for a while. Sergeant Hopper said he saw the defendant’s porch light initially come on when he arrived, but the light went out as they spoke to Mr. B rey. He said he thought the defendant was going to go inside to sleep, but the defendant came out and g ot into his vehicle. He said the defendan t got into an old

er model Chevrole t pickup tr

uck, star ted it, and proceeded to leave the residence . He said that he walked back to his car, and as the defendant approached

the intersection of Patsy L ane and Fesmire Road, he initiated his blue lights and blocked off the exit. He said the defendant stoppe d an d backed up to his residence. He said that when he spoke to the defendant, he noticed the defendant reekedof alcohol and slurr ed his spe ech. He

said he gave th

e defendant a nine-steps heel-to -toe and a one-le gged

stand sobr

iety test s. He said

th e defendant did not advise

him of his ph

ysi cal prob lems. He s aid the one-leg ged sta nd is a standar d ized test where the person holds his foot, of either leg. He said the test subject is to keep the foot off the ground and six inches from a stationary object and then cou nt f

rom 1001 to 1030. He said the quicker the test subject messes up, the more intoxicated he is. He said the defenda nt did very poorly in that he might have counted to 1003, 1004 with his foot on the sta

tionary object. He said the defe ndant did not complete the nine-steps heel-to-toe test. He said that in his opinion, the defendant was very intoxicated. He said he placed the defendant under arrest for driving under the influence (DUI) and took the d efendant to the Carroll County Jail. He said he ha d the defendant complete the sobri ety

test again on video camera, and e ven though he did bette

r than wh at he did
at the residence, he still failed the test. He said that the defendant

never made him aware that he was

on medicati on or had

any phy sical de fect. He

said it wa s the poli cy of the Car ro ll County

Jail to videotape DUI suspects. The tape was play ed for the jury and entered into evidence.

On cross-exam ination, Sergeant Hopper testified that the defenda nt perfo rmed poor

ly o n both sobriety tests. He said he offered the defendant the Implied Consent for m and read it to the defenda nt. He said

the form explains that the defendant could take the Brea thalyzer test or blood alcohol test. He said the defendant refused to take a test. The prosecution e ntered t he I mpli ed Consentform into e

vidence . He said

the defe ndant wa s not walking with a cane nor did he try

to get a cane to walk with. He said the defendant ne ver told him that he hadany injury or hadjust taken medication and should not be out.

On cross-e

xamination, Serge ant Hoppe r testified that at G

eneral Sessions he

could not r

ecall whether it was De

puty Doug Pa te or Dep uty Mark He dge tha

t accomp anied him

to the ca ll on the night of the offense. He said that Deputy Hedge was the officer tha tresponded to the ca

ll with him. He said that the nine-step field test is a standardized test, and he knew that the terrain was unlevel and rocky. He

said he would not base every thing on the sobriety te st. He said that the terr ain would have some bea

ring on how the defendant would have performed. He

said he observed the defendant drivi ng, but it was not like a regular DUI where y ou follow som

eone. He said the d efenda nt did not

run off the r

oad or hit any thing. H e said tha

t Deputy Hedge was not a witness to

either so briety test. He said that the defendant smelled of beer, and he sa w some empty cansof Milwau kee’s B est

beer-4-

in the defendant’s vehicle. He said the defe ndant had a cane in his vehicle, but he did not ask for the

cane while he completed the field sobriety tests. He said the defen dant did no t a sk for a blood alcohol test. He said he did not ask the defendant if he wa s o n m ed ic at io ns or su ff er ed a d is ab il it y. On redirect-examination, Sergeant Hopper testified he did not know whose canewas in the truck.

Deputy Mark H edge of the Carroll County Sheriff’s Department testified that he was called

as a ba ckup for

Se rgeant Jeff Hopper on the night of the of fense. He said he saw the defenda nt perform field sobriety tests, and it appea red the defendant

was too int

oxicated to

be drivin g. He sa

id he did not see the defendant walk with a cane. He said he saw several empty Milwaukee’s Best beer

cans in the def

endant’ s vehicle . He sai d he did no t accomp any Serge ant Hoppe

r to the Ca

rroll County Jail. He said he had been out to Brey ’s Trailer Park on a

call bef ore and w as famili ar with Patsy Lane and Char les L ane. He

said they arrive d betwee

n 12:00 an d 12:30 a. m. He said Sergeant Hopper was in front of him when he arrived on the scene. He said he and Sergeant Hopper parked
at the side of Patsy L

ane and Fesmire Road. He said they got out of their cars and walked up to the rental house

belong ing to Mr . Brey . He said that the d efenda nt was in hi s house

when he arrived on the scene. He said

he observed a

porch light on at the defendant’s trailer, the lig ht then went out, and then the porchlight ca

me back o n. He sai d the def endant c ame back out o f his trai ler and g ot into his truck. He said the defendant procee ded on to Fesmire Road, off of Patsy Lane, in his late model Chevrolet truck. He said the defendant stopped and then bac ked up toward his trailer. Hesaid the defendant got out of his truck after being aske d by Serg eant Hopper a nd starte d perfor

ming the field sobriety tests . He sai d the d efenda nt was “wavy and p retty sta gge ry” on the nine-step heel-to-toe field sobriety test. He said the sur face of thegro und was covered with grass and g ravel, and the def endant was unsteady on his feet. He said the terrain was not unlevel or roug h. He sai d th e defendant d id not mention a cane or any disability. He said he did not ask him if he had a ny problems or

takes any medic ations. He said an injury or some medications would adversely impact these field tests.

Scotty Bailey , Carroll County Road Supervisor, testified that he wor ks Fesmire Road. He said that Fes mire Road

is a count y- maintaine d road, w

hile Patsy Lane is not. On cross-examination, Mr. Bailey

testified that Patsy Lane and Charles Lane are on th e county maps. He

said he guessed that Mr. Brey maintained the roads in his trailer park. On redirect-examination, Mr. Bailey te stified that he has notseen any

signs out in that ar ea desig nating it as a tra

iler par k. He sai d there a

re just sporadic trailers up and down Fesmire L ane. He said he has not paid attention to the trailer s on Patsy Lane and Charles Lane, bec ause he works only the county roads. H e said he ha s nothing to do with private roads. He said th

ere ar e some ro ads in tha

t area w ith road n ames, but they are not c ounty roads. He said the map does not indicate ownership of the roa ds.

The defendant testified that onthe afternoon of July 21, 2000, he ha d troub le wit h the l inkage in hi s ‘ 64 Ch ev y t ruck. He said tha t around six o’clock in the evening, he test drove his Chevy several times to test the linkage. He said he went back outside around 11:15 p.m. to test the link age
one last time by pulling up the drivewa y and bac king up. He s aid that he suffered a spinal cord injury w hen he wa s in the milit ary and has to

take sev eral med

ications. He said

he take s Amitriptyline, which is also known as Elav i l, at nighttime to help him rest. He said he took the-5-

Amitriptyline

at about 11:15 p.m. and then went outside to try his truck. He said that normally he would be in bed at that time. He said th e Amitript

ylin e was ste adily

putting h im to sleep

the whole time. He said he got into his truck and drove about halfway up the

driveway, to the f

ork in the road, and then backed

up. He said he backed

up to the trailer, pulled back in his driveway , and saw two

cars coming. He said he had already gotten out of his truck and started around the back of the truck. He said that one of the officers told him over the loudspeaker to get ba ck into his truck. He said he got back into his truck , and one

of the of ficers t old him that

he smelle d like alc ohol and to ld him to get out of his tr

uck. He s aid

he told the of

ficer th at he nee ded to g et his ca ne, and th e offic er told him he considered the cane a dea dly weapon. He said that the officer told him he did not need his

cane. He said that he told the officer that he had been taking some night medication and tha t earlier, he drank one beer over

a four-hour span. He said he told the officer that the medication would put him to sleep a fter aw hile, and the offic er told him

that he wa s DUI . He said the officer told him he was going to take him in and allowed him to lock his front door before taking him to the Sheriff’s Departm ent. He said that on the way to the Sher iff’s Department, the officer told him that he knew the defendant would pull out on Fesmire Road because he knows “ what whit

e trash th inks.” He said that he tried to do the best that he could at the Sheriff’s Department because the medicine was steadily making him drowsy. He said that he wanted the officer to take him to the hospital to have

a blood test

so the test

would pro ve that he

only had medic ine in his sy stem. He s aid the of ficer to ld him that he “ didn’t ha

ve time to f

ool with him” and threw him in the drunk tank. He said that it was 1:00 a.m. when he was asked to perform the sobriety test, and he usually g oes to bed no later than midnight

. He said he took his sleep me dication around 1 1:15 p.m. H e said he wanted to go outside
to test his truck one more time before bed to see if the sy nchronizer

was kicking in. He said he has had problems with his transmission in the past and has had to replace it four times in five years. H e said he is on disabi lity that is 60% service-c onnected for a spinal cord injury . He said he did not know what ty

pe of spin al cord i njury

he had, b ut said tha

t he fell e ight feet, head first, off of a telecommunications vehicle in the service in 1989. He said that when he hit the ground, his spinal cordwas li ke a sh ock ab sorbe r, resu ltin g in the removal of two discs. He said he suffers from Fibromy algia and has a seven-inch long steel plate in his ankle. He said that these injuries and the medications he took

interfered with his performance on the fie

ld sobrie ty te sts. He sa

id he woul d have performed better on the field sobriety tests if he had the use of his cane.

The defense

counsel a sked the d

efenda nt to look a

t photogr aphs of th e scene and explai n to the jury what the p

hotos depi cted. The defendant point ed to a photo and testified to where he lived in relation to hi s d ri ve wa y. The defendant testified that his driveway is roughly 235 fe

et to the center of Fesmire Road. He said he pulled his truck up to the point where the forks meet, which is 125 feet from his driveway. He

said he backed down to the trailer before h e saw headlight s come up h is driveway.

On cross-examination, the defendant testified that he lived on Patsy Lane in the trailer park. He sa id th at he ha s t o p as s o ne tr ai le r o n t he co rn er of Fe sm ir e a nd Pa ts y L a ne to get to Fesmire Road. He said that

there a re two Pa tsy Lanes that dead end in the tra iler park. He said he did not know that the police were at the trailer park when he pulled halfway

up his driveway a

nd backed up. He said that t

he police hidbehind bu shes on F

esmire a nd did not w alk

up to his trailer. He said he-6-

was not planning to go any where when he

got into his truck and that he was only try ing to check the link age on his truck. He said that he d oes n ot work because of his health and takes Amitripty line and stomach pills. He said that he did not have anywhere to go the morning after the arrest and that four days later, he

went to his appointment at the V.A. He said the reason he was so diligent about working on his truck was so that he would make it to his doctor’s appointment. He said that he had

no cans in his truck, an d he would never drink a Milwaukee’s Best. He sa id that while he was outside at 6:30 p.m. or 7:00 p.m., he had one beer which had been in the re frigerator. He said that he drank the beer, got in his recliner, and went to sleep. He said that he woke up and rea lized that he needed to take his night medicine and try his truck one la st time. He said somebody called a nd said that he had “cu

t his arms a

ll to piece s” and wa s try

ing to kill himself. He said he did not take

a field sobriety

test at h is h ouse. He said that at the jail his speech was getting slower and slower due to the Amitr

ipty line. He s aid he wa s gettin g drows ier and d rowsie r due to the Amitriptyline. He said the officer’s car neve r blocked the road.

At the conc lusion of tr

ial, th e j ur y found the

defenda nt guilty of DUI , a Class A misdemeanor. The record reveals the defendant stipulated he had a prior DUI conviction, making this a conviction for

DUI - second offense . The judg

ment form

reflec ts that this is a conviction for DUI; however, the trial court stated at the conclusion of trial that the defendant was convicte d for DUI- second offense. After a sentencing hearing, the defendant was sentenced to ll months, 29 day s. The trial court ordered the defendant to serve 60 days in the county

jail, with the remainder on supervised probation. The trial court suspended the defendant’s license f or two years a

nd fined him six hundred dollars ($600). We remand for the correction of the judgment form to reflect that the defendant was convicted of DUI - second offense.

II. Analysis

The defendant

alleges that the evidence was insuffic ient to supporthi s co nvi cti on f or D UI. When a defendant cha

llenge s the suff

ic iency of the evidence, the standard is whether, af ter reviewing the evidenc e in the lig

ht most fav orable t

o the prosecution, any

rational trier of fact could have found the essential elements of the crime bey ond a reasonable doubt. Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed . 2d 560 (1 979); Ten n. R. App. P. 13. This stand ard is ap plicable
to findings based on both direct and circumstantial evidence. Statev. Thomas , 755 S.W.2d 838, 842 (Tenn. Crim. App. 1988).

It is we ll established that a jury ver dict, approved by the

trial court, accredits witne s s testimonyfor the State and resolves all conflicts in favor of the theory of the State. State v. H atchett
, 560 S.W.2d 627, 6 30 (Tenn . 1978); State v. Townsend , 5 25 S.W.2d 842 , 84 3 (T enn . 19 75) . In determining the suff

iciency of the evidence, this Court does not reweigh or reevaluate the evidence. Statev. Cab bage , 571 S.W.2d 832, 835 (Tenn. 1978). A verdict of guilt removes the presumption of innoc en ce from the defendant and replac es it with a presumption of guilt, and on appeal, the defendant’s burden is to demon strate w hy t he evide nce is ins ufficie

nt to support hi s guilty

verdict

. Statev. Carruthers , 35 S .W.3d 516, 5 57-58 (20 00); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).2 Th e d ef en da nt wa s no t ch ar ge d w i t h h av i ng a b l oo d a l co ho l co nt en t of t en hu nd re dt hs of

on e p er ce nt

(

. 10 %)

or more.

-7- Tenn essee Co de Annotated section 55-10-401(a)(1) provides that “ it is unlawful for any person to drive or to be in physical control of any automobile or othe r motor driven vehicle on any of the public roads and highway s of the state, or on any streets or alley s, or while on the premises of any shopping

center, trailer park or any apartment house complex, or any other premises which is generally

frequented by

the public at lar ge, whi le (1) Under the i nfluenc e of any intoxicant, marijuana, narcoti c drug , or drug producin g stimula

ting ef fects on the central nervous sy stem; or (2) The alcohol concentration in such person’s blood or breath is ten-hundredths of one percent (.10% ) or more.” 2

In the instant case, after viewing the evi dence in the light most favorable to the State, sufficient evidence exists to establish the defen dant was unde r the infl uence w hile oper ating hi s vehicle. Two officers testified to viewing the defe ndant driving and s melling the strong odor of alcohol on the defendant. The officers testified they witnessed the de

fendant perform

poorly on field sobriety t ests. Furthermore, the jury witnessed the defendant perform field sobriety tests on videotape. The defendant admitted to taking a prescr iption sleep-aid and drinking one beer earlier, before getting in his car and driving down Patsy Lane within the trailer park. The defendant stated that he became drowsier by

the minute as h

e drove d own Patsy

Lane and durin g the fi eld sobri ety tests.

The defendant further argue s that the e

vidence is insuffi cient to

sustain his DUI conviction, because he was not on a public road and was driving his vehicle on h is own p ri va te dr iv ew ay. Tennessee Code Annotated section 55-10-401(a) provides th at it is unlawful to drive under the influence on any of “the

public roads and highway s of the state, or on any streets or alley s, or while on the premises of any

shopping center, trailer park or a ny apartment house complex, or any other premises which is generally frequented by

the public at large.” “A jury verdict approved by

the trial judge accredits the testimony of the witnesses for the State and resolve s all conf

licts in favor of the State’s theory.” State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Whether the de fen dant traveled upon a public or private road is a question for the jury . In State v. Hiner , this Court rejected a similar argument when it concluded that evidence was sufficient to support the defendant’s DUI conviction where the defendant drove while under the influence of an

intoxicant within the st

reets of a gated subdivision. State v. Hiner , 988 S.W.2d 697, 700 (Tenn. Crim. App. 1998).

Testimony

reveals the defenda

nt drove h

is vehicle from his trailer down to the intersection of Patsy Lane and Fes mire Road , both

of which are included on maps of Carroll County

. The record includes sketches of the trailer park, which illustrate the location of the de fendant’s home in relation
to other hom

es in the area. The sketches and trial testimony support the State’s assertio n that Pats y Lane is not a private drivew ay. The de fendant’s home is not the last home located on Patsy Lane. The record

reveal s t he defe ndant drove down Patsy L ane, a road accessible and fr equented by occupa nts of homes located on Charles Road. Moreover, Patsy Lane is utilized by the occupants of five different homes from the entrance of the trailer par k at Fesmire Road. Therefore, the evidence-8-

supports the State’s contention that Patsy L ane is not excl usive ly u sed by the defe ndant and is

access ible by t

he other occupa nts of the homes, the

ir gues ts, invite es, and the public at large. Nothing in the record suggests the def enda nt had exclusive control over Patsy L ane within the confines of the Brey

Trailer Park.

From these facts, in the light most favorable to the State, we conc lude that there is sufficient evidence for a

rational trier

of fact to find the defendant was driving on a public road while under the effects of an intoxicant and, therefore, is g uilty bey ond a reasonable doubt.

Next, the defenda

nt argu es that hissentence is excessive. The defendant arg ues that the trial
court erroneously e

nhanced the defenda

nt’s sentence based upon an uncounseled prior DUI conviction and fail ed to prop erly apply mitigati ng fac tors. The defendant argues the State fa iled to prove the existence of an enhancing conviction.

In misdemeanor sentencing, a sep arate sentencing hear ing is not mandatory, but the tria l court is required to allow the parties a reasonable opportunity to be heard onthe question of the length of the sentence and the manner in which it is to be served. Tenn. Code A nn. § 40-3 5-30 2(a). The
sentence must be spe cific and consiste nt with the purpose and principles of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-3 02(b). A trial cou rt is not required to

place sp ecific findi ngs on the record with regard to sentenc ing determinations, as required for felony sentencing under Tennessee Code Annotated sections 40-35-209(c) and 40-35-210(f). State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998). Misdemeanor sentencing is designed to provide

the trial court wit h continuing jurisdiction and greater flexibility. See State v. Troutman , 979 S.W.2d 271, 273 (Tenn. 1998); State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1 997). Unl ik e felon y sentenci ng, defenda nts are not entitled to a pre sumptive minimum sentence in misdemeanor sentencing. See State v. Cr

easy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

It is this defendant’s duty to prepare a record which c onveys a fa ir, accurate, and compl ete

accou ntof what transpired with respect to the issues forming the ba sis of the appeal. State v

. Ballard
, 855 S.W.2d 557, 560 (Tenn. 1993); T.R.A.P. 24(b). In this case, the defe ndant has failed
to include in the record

a transc ript of hissentenc ing hea

ring, w hich is es sential f

or appellatereview. When faced with an

incomple te reco rd on app eal, we must presume that the ruling of the trial court is correct. State v. Boling , 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992).

III. Conclusion

Ac co rd in gl y, we affirm the defendant’s conviction and sente nce imposed in the trial court. We remand to the trial court to reflect the proper cha rge of DUI

- second offense.



### _________________

_____________ JOHN EVERETT WI LLIAMS, JUDG E