### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

une 19, 2001 STATE OF TENNESSEE v. EDWIN MILTON SOCALL Direct Appeal from the Circuit Court for Montgomery County

No. 40309 Robert W. Wedemeyer, Judge

No. M1999-02727-CCA-R3-CD - Filed August 16, 2001

The Appellant, Edwin Milton Socall, was indictedby a Montgomery County Grand Jury for driving under the influence (DUI), reckless driving, violation of the implied consent law, and driving on a revoked license (DORL). Following a

bench trial, Soca

ll was found guilty of first offense DUI and secondoffense DORL. He was se ntenced to el even months, twent y-nine days, with a

ll but thirty days suspended, for DUI, and eleven months , twenty-nine day s, allsuspended, for DORL, second offense. At the bench trial, Socall was represented by retained counsel; however, no court reporter was employed to tra

nscribe the proc

eedings. Following his conviction, S ocall requested that he be found indigent for purposes of appeal and requested appointed appellate counsel. The trial court gr anted hisrequest and appo inted the public defender’s office. Because the proceedings below were not transcribed, a statement of evidenc e pursua nt to Tenn. R. A pp. P. 24(c) was prepared. On appeal, three issues are presented for our review: (1) Whether “the failure to prese rve evidence through the use of a court reporter or tape recording” deprived Socall of an effective appeal; (2) whether the evidence was suff icient to support the convictions of first offense DUI and second offense DORL; and (3) whether the trial court erred by orderi ng Socal l to serve thirty days in confinement. After review, we find issue (1) is without merit and issue (3) is waived. Moreover, we hold the evidence is sufficient to suppor t Socall’s convictions for DUI and DORL, second offense. Accordingly, the judgment is affirmed.

Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is Affirme

d.
D AVID G. H AYES , J., delivered the opi nion of the court,

in which T HOMAS T. W OODALL , J. and L. T. L AFFERTY , Sr.J., joined.
Russel A. Church, Assista nt Public Defende

r, Clarksville, Te

nnessee, for th

e A ppellant, Edwin Milton Socall.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Soli citor General; Pa tricia C. Ku ssmann, Assistant Attorney General; John We

sley Carney, Jr.,

District Attorney

General; an d Arthur Bieber and Jamie Crenshaw, Assistant District Attorneys General, for the Appellee, State of Tennessee.-2- OPINION Factual Background
Because a stenographic

record of the evidence was not made at trial, a narrative statement of the evidence was prepared pursuant to Tenn. R. App. P. 24(c). In conducting a sufficiency review of the evidence, we are required to a fford the State the strongest legitimate view of the evidence. Statev. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S. Ct. 1368 (1993). Applying this s tandard, we ha ve excerpted from the statement of evidence those facts in the light most favorable to the State:
The State called one witness, Officer Donnie Robbins of the Clarksville Police Department. Off

icer Robbins[’] t

estimony was substa

ntially as follows:
At approximately 3:19 a.m . he heard what he believed to be tires squealing on the roadway. He was near the intersection of Highway 41 A and Tiny Town Road. When he looked to h is right, he observed a vehicle spinning tires to the point that smoke was coming from the tires. He fol lowed the vehicle a short distance on Highway 41 A where it tur ned into a p arking lot of a bar called the Gold Nu

gget. The automobile stopped in the parking lot. When the officer pulled in be hind the vehicle, the operator put the vehicle in park, turne d i t off and put the driver’s seat in a reclining p o sition. The driver was the sole occupant of the vehicle, and the officer identified the Appellant as the driver. Upon approach to the automobile, theofficer detected an odor of an al coholic beverage through the open window. He asked th e Ap pell ant to get out of the veh

icle and perfor

m field sobriety te

sts. The Appellant told

him he was familiar

with field sobriety tests. He performed

two tests, the one legged stand and the walk and tu

rn test. The officer described the tests. In the officer’s opinion, the Appellant failed these tests. He wa s placed under a

rrest for driving

under the influence of alcohol. At the Montgomery County Jail, the Appellant was advised of his rights under the implied consent sta tute. The officer testified the Appe

llant understood th

ese rights, asserted them and refused to su

bmit to a breath alc

ohol test.-3- I. Failure to Request a Court Reporter
The Appellant

contends t

hat he was deprived of an effective appeal due to trial counsel’s failure to preserve evidence t hrough the use of a court reporter at his bench trial. In Tennessee, a defendant in amisdemeanor trial is not automatically provided with a court reporter at state expense. Tenn. Code Ann. § 40

-14-307(a) rea

ds, in pertinent pa

rt, as follows:
A designated reporter

shall atte nd every stage of each criminal case before the court and shall record verbatim, by a method prescribed or app r oved by the executive secretary [now administrative

director], all

proceedings had in open

court and such other proceedin

gs as the judge

may direct

. However, the "criminal case" to which the statute refers is narrowly , but spec ifi cally, def

ined in Tenn. Code Ann. § 40- 14-301(2) as "the trial of any criminal offense which is punishable by confinement

in the state penitentiary and any proce

eding for the wr

it of habeas corpus wherein the unlawful confinement

is alleged to be in a

state, county or municipal institution." Under the law of this state, penitentiary confinement as punishment is the defining feature of a felony as distinguished from a misdemeanor

which, by definition, provides for punishment for less than one ye ar. See Tenn. Code Ann. § 39-11-110 ( 1989). In othe r words, a court r

eporter is not provided at sta

te expense

for a misd emeanor offense unless a defendant is unable to afford one based upon indigency

. State v
. Nail , 963 S.W.2d 761, 764 (Tenn. Crim. App. 1997). Thus, a verbatim tr anscript will be un

available on appeal unless the defendant employs a c ourt re porter at trial. Wh en a verbatim tra

nscript is unavailable, an Appellant may prepare a statement of the evidence. See Tenn. R. App. P. 24(c). The Statemay file objections to the statement of the evidence, and

the trial court shall decide what may be properly included within the statement of evidence. Tenn. R. App. P. 24(c) & ( e).
In the presence c

ase, the Appella

nt was charged

with misdeme anors and no showing of indigency was established prior to the time of h is trial. The trial judge approved the Appellant’s statement of evidence and

the State made no ob

jectio n to its accuracy. Despite the Appellant’s contentions that a transcript of the evidence was necessary in orde r "to reflect

[whether] objections were made . . . [and] wheth er they g ive rise to any issue for appeal," we find that Tenn. R. App. P. 24(c) provides a suffic

ient substitute

for the memoriali

zation of a complete

and accurate account of the facts which give rise to those issues which form the basis of the appeal. Thus, t his issu e is without merit. II. Sufficiency of the Evidence
The Appellant contends that the evidence at trial was insufficient to support his convictions for first offense DUI and for second offense DORL because a court reporter did not transc ribe the proceedings.
A jury conviction removes the presumption of innocence with which a defendant is cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of-4-

demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining th

e suffic iency of the evidence, this court does not reweigh or re evaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty

of this Courtto revisit questions of witness

credibility on appeal, that function being within the province of the trier of fac t. See generally State v. Adkins , 786 S.W.2d 642, 646 (T enn. 1990); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must es

tablish that the evidence presented at trial was so deficient that no reasonable trier of fact could have found the essential elemen

ts of the offense

beyond a re

asonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e).
In order to sustain a convictionfor first offense driving under the influence, the State must prove the following elements: (1) driving or being in physical control of a motor vehicle (2) upon a public thoroughf

are while (3) un

der the in fl uence of an intoxicant or drug. Tenn. Code Ann. § 55-10-401; State v. Ray , 563 S.W.2d 454, 459 (Tenn. Crim. App.1988). Acco rding tothe statement of the evidence, Officer Robbins testified that af ter observing th

e Appellant’s er

ratic driving, he followed him to the Gold Nugget, where he found the Appellant reclined in the driver’s se at at which time he detected a strong odor of alcohol. Officer Robbins further testified that the Appellant failed two field sobriety tests. Clearly, the testimony of Officer Robbins, taken in the light most favor able t o the S tate, is su ffici ent to suppo rt the Appel lant’ s conv ictio n for D UI.
Sec ond ly, in order to sustain a conviction for second offense DORL, the Stat e must prove that the petitioner, for a second time, drove a motor vehicle on a public road in Tennessee while the petitioner's privilege to drive was revoked. Tenn. Code Ann. § 55-50-504(a)(2).
An examination of the statement of evidence reveals no reference to any fact

relating to

the Appellant’s charge of

DORL. Nonetheless, an exhibit is included in the record of the Appellant’s Tennessee Dep art men t of Saf ety “ dri vers reco rd” w hic h cl earl y est ablished that the Appellant’s drivers license was suspe nded at the time of

this offense. Also inc

luded in the record is a certified copy of a conviction, introduced as an exhibit, establishing that the Appellant had previously been convictedof driving on a revoked or su spended license

on February 19, 1999. Moreover, as noted, Officer Robbins testified th

at he saw the Appe

llant o perating the vehicle on a public road. Based upon this proof, we find the evidence sufficient to support the Appellant’s convictio n for D ORL, second offense. III. Sentencing
The Appellant argues that the trial court erred by o rdering that he serve thirty

days of his eleven-month twenty-nine day sente nce for DUI in confinement. It is well established that it is the Appellant 's duty to prepare an adequate record for a ppellate review. Tenn. R. App. P. 24(b). When a party seeksapp ell ate revi ew, the re i s a d uty t o pr epar e a re cord whi ch co nve ys a fair, accurate, and complete account of

what transpired w

ith respect to the i

ssues forming the

basis of the appeal. State v. Ballard , 855 S .W.2 d 557, 560 (T enn.1 993). In the present case, the Appellant has failed to include1 The statement of the evi dence fails t

o make any ref erence to t he trial court’s sentencing determ inations. Notwithst

anding, the unifor

m judgment of convict ion docum ent w hich represents t he court’s offici

al and final adjudicat

ion of the issues i

nvolved at sent

encing is included i

n the record.

The judgment form ref lects t hat the Appellant received a se

nte nce of e lev en mo nth s, twenty -ni

ne d ayswit

h al l t imesuspended except for thir ty days and was assessed a fine of $250.00. Special conditions imposed include: (1) State probation;

(2) Drivers

license is revoked f

or one year; (3) To begin servi ng 11-13-99 at 6: 00
a.m
. for 2 days only. To r eport agai

n for consecut

ive Sundays onl

y be gin nin g 11- 21- 99 a

t 6: 00 a .m. for the completion of sentence; (4) Count 2 is

dismisse

d; (5) Defendant

found in violation of i

mplied consent and the de fen dant’s dri vers li cense is revoked for an a

dditional year; (6)

To pay fines and costs at $25.00 p er month b eginning in 30 days. -5- within the record any

evidence perta

ining to sentencing. 1 In the absenc e of an adequate

record, the trial court’s ruling is presumed correct. State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998). Notwithstanding this waiver, we note that the statute pertaining to this offense, Tenn. Code Ann.§ 55-10-403(a)( 1), provides for a maximum punishment of e leven months and twenty-ni ne d ays for the offense of DUI. While trial courts cannot deviate from the length of the DUI sentence, trial courts do retain discretion in determining what portion of the eleven-month and twenty-nine da y sentence a defendant will serve in confinement. Troutman , 979 S.W.2d at 272. Accordingly, a trial judge may designate a service percentag e in a DUI

case under Tenn. Code Ann. § 40-35-302(d) so long as that percentage does not operate to reduce the mandatory minimum sentencing provisions of the DUI statute. State v. Palmer , 902 S.W.2d 391, 394 (Tenn.1995). A DUI offender can be sentenced to serve the entir

e eleven-month

and twenty-nine day sentenc e imposed as the maximum punishmentfor DUI. Id. Thus, the period of confinement imposed by the trial court in this case was within the authorized sentencing range. Because the tri al cour t’s ruling is pres

umed correct, th

is issue is also without

merit.

CONCLUSION
Ba sed upon th e foregoing r easons, the judg

ments of convictio

n and sentences f

or first offense DUI and DORL, second offense, are affirmed.

___________________________________

DAVID G. HAYES, JUDGE