# FILED
August 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9708-CR- 0 034 7 ) vs. ) Hamblen County ) MICHAEL TODD DRINNON, ) Hon. James E. Beckner, Judge ) Appellant. ) (Evading Arrest - 2 cts. ) 3d offense Driving on Rev oked License - 2 cts.)

FOR THE APPE LLANT: FOR THE APPELLEE: GRE G W. EIC HEL MAN JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter D. CLIFTON BARNES CLI NTO N J. MOR GAN Asst. District Publi c Defender Asst. Attorney General 419 High St. 425 Fifth Ave. N., 2d Floor Maryville, TN 37804 Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General JOHN DUGGER Asst. District Attor

ney General 510 Allison St. Morristown, TN 37814

OPINION FILED:________________ AFFIRMED CURWOOD WITT, JUDGE1 The sentences were imposed cons ecutively to a prev

ious sentence for which the defendant was on appeal bond at the time he committed these offenses. 2 OPINION 0 The defendant, Michael Todd Drinnon, appeals from his conv ictions of two counts of evading arrest and two counts of third offense driv ing on a revoked license. Drinnon received his convictions at the conclusion of his trial before a jury of his peers in the Hamblen County Crimi nal Court. He received sentenc es of two years each for the evading arr est convictions and elev en months, 29 days for the driv ing on revoked license convictions. The evading arrest convictions were imposed consecutively to eac h other and concurrently to the dr iving on revoked license convictions, for an effective sentence of four years. 1 In this direct appeal, Drinnon challenges the sufficiency of the convicting evidence, the court's ruling that
a defense witness must not inv oke his Fifth Amendm ent pr ivilege if he took the stand, and the sentence he received. Followin g a rev iew of the record and the briefs of the parties, we affirm the judgment of the trial court.

T he state's evidence at trial was that the defendant, who has a revoked driver's license, ran a stop sign and then fled from Officer BobEllis of the Morristown Police Department o n Ju ne 16, 1996. Shortly thereafter, on June 22, 1996, Officer Ellis again encounte red the defendant, who led him on a s econd chase. Officer Lynn Bales saw a videotape that Officer Ellis made of his second pursuit of the defendant, and on June 26, 1996, Officer Bales encountered an individual and a motorcycle, both of which matched those sought by Office r Ell is. The individual was the defendant.

The defendant's trial evidence w as that an individual other than3

himself had driven the motorcy cle.

I The defendant's first challenge is to the sufficien cy of theconvicting evidence. However, we a re precluded from considering the is sue before us because the defendant has failed to see that all of the trial evidence is included in the record. The key issue a t trial was

the identity of

the perpetrator. The defendant claimed someone else committedthe crimes. Several exhibits were admitted which apparently depict tattoos on the defendant's back an d a similar tattoo on the back of the person the defendant cl aimscommitted the crimes. These ex hibitswere not included in the record on appeal. "It is the duty of the appellant to prepare a record which conveys a fair, accurate and complete acc ount of what transpired in the trial court with respect to the is sues which form the basis of the appeal ." State v. Oody , 823 S.W.2d 554, 559 (Tenn . Crim. App. 1991); Tenn. R. App. P. 24(b). If the record fails to contain necessary items with respect to an appe llate issue, the cou rt is precluded from considering the merits of the issue. State v

. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993); Tenn. R. App. P. 24(b). Accordingly, we are unable to consider this issue on its merits.

II

In his second is sue, the defendant claims the trial court erred in instructing a defense witness to answer a question after the witness invoke d hi s Fifth Amendment right not to giv e incriminating testimony against himself. Th e defendant's brief containsno citation to any legal authorit y whatsoever. See Tenn. Ct. Cr im. App. R. 10(b); Tenn. R. App. P. 27(a)(7). Failure to follow the rules of court is a perilous practice which often, as in this case, results in technical default2 Additional penalties for failure to fi le a brief w

hich substantially co nforms with the requirements

of the Tennessee Rules of Appellate Proc edure include striking the brief and or dering the offending party t o file a new brief and orderi ng payment of costs by the offending at torney or party. Tenn. R. Ct. Crim. App. 10(a). Willful noncompliance with the rules of this court may r esult in a contempt citation. Tenn. R. Ct. Cr im. App. 16.
3 The defendant also briefly argues that the trial court made impr oper comments adversely reflec ting on the credibilit

y of this witness in

the presence of the jury. The record r

eflects that the challenged comments , which we do not find illustrative of the w

itness' credibility, were made at a bench conference o ut of the

4 of the issues improperly pr esented. 2 See Tenn. Ct. Crim. App. R. 10(b).
Moreover, if this issue had been pro perly pres ented, we would find it without merit

. Before the witness took the s tand, the assistant distri ct attorney objected and informed the court that the defense wascalling the witness solely so he could invoke his Fifth A mendm e nt privilege agai nst self-incrimination w hen asked whether he was the dr iver for the incidents w ith which th e de fendant was charged. T he court rul ed that the witness must g ive his testimony, r ather than i nv oking his constitutional privilege. Thereafter, the defense of fered the witness' testimo ny. The witness admitted driv ing the moto rcycle in que stion on t wo occasions in June 1996. When asked whether he avoided a police vehicle which
waschasing him when he w as riding the motorcycle, he first said he would "rather" invoke his Fifth Amendmen t privile ge. The court instructed hi m, "You need to
an swer the question." Thereafter, he deni ed fleeing from a police officer on th e motorcycle.
An in-depth analysis of the applicable law is not necessary because these facts reveal t hat the witness had no need to i nvoke his Fifth Amendment privilege. His testimony is devoid of evid ence of any crime he committed. Furthermore, we find no evidence whatsoever to support the defendant's claim that the witness' testimony in this regard was untruthful. 3hearing of the jury. We view the defendant's implication that the jury was

prejudiced by these comments as, at best, misguided, in light of the reco rd's reflect ion that the comm ents were n ot heard by the jury. 5 If this issuehad been properly a ddressed in the def endant' s brief, we would find it without merit.

III

Finally, the defend ant challenges the propriet y of the maximum incarcerativ e se ntences he received on each c ount and the imposition of
co nsecu tive sentences on two of the counts. Again, he has failed to ma ke appropriaterefer ences to the record and citation to relevant authorities. His argumenton this issue consists of three sentences and does not allege any specific deficiency in the manner in which the trial court imposed the sentences. The issue is waived. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7).

In any event, the record reflects that the defendant receiv ed a proper sentence. The trial court thoughtfully and methodically applied the principles of the Sentencing Reform Act of 1989 in determining the length of the individual sentences and imposing consecutive sentenci ng. The defendant has lived a protrac ted and active life of crime, especially for a man of only 33 years of age. He has repeatedly failed at serving probated or paroled sentences. He has continued to violatethe law and/or has received newsentences on several occ asions despite being on probation, parole or bond. He sh ows no prospect of reforming himself into a productive, law

abiding member of society, and the public deserves pr otection from the defendant.

We affirm the judgment of the trial court.6 _______________________________ CURWOOD WITT, JUDGE
CONCUR:

_____________________________ JOSEPH M. TIPTON, JUDGE

_____________________________ JOE G. RILEY, JUDGE