### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 2000 Session STATE OF TENNESSEE v. MARION LEE CHAPMAN Appeal as of Right from the Circuit Court for Carroll County No. 99CR-1374 C. Creed McGinley, Judge

No. W1999-00410-CCA-R3-CD - Filed October 16, 2001

A Carroll County jury convicted the appellant, Mar ion Lee Chapman, of one (1) count of driving under the influence of an intoxicant. The trialcourt sentenced the appellant to eleven (11) months andtwenty-nine (29) days, sus p ended after serving ten (10) days in confineme nt. On appeal, the appellant argues that the trial court erred in denying his motion for a continuanc e on the day

of trial. We hold that the appellant has waived this issue for failing to p repar e an adequate r ecord for this Court’s review. In addition, we conclude that, based on the limited record before us, the trial court didnot abuse its discretion in denying the motion for a cont inuance. T herefore, we affirm the judgment of the tr

ial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t of Carroll County is Affirmed
J ERRY S MITH , J., delivered the opinion of the court, in wh ich J AMES C URWOOD W ITT , J R ., J., and R OBERT W. W EDEMEYER , J., joined. Gregory D. Clayton, Na

shville Tennessee, attorney for the appellant, Marion L ee Chapman.
Paul G. Summers, Attorney General and Reporter and Kim R. Helper, Assi

stant Attorney

General, Robert Radford, Dis tri ct A tto rney G ener al a nd E lea nor Cah ill , As sis tan t Di str ict Att orn ey, att orn eys for the appellee, State of Tennessee.
OPINION
I.
On Janua ry 16 , 1999, the appellant was arrested for driving under the influence. Approximately

fo ur (4 ) months later, the appellant was ar

raigned in the Ca

rroll County C

ircuit Court, and although he had retained an atto

rney to represent him, he

appeared withou

t counsel at his arraignment.

During the proceeding, the following colloquy between the trial court and the appellant occurred:-2-

THE COURT: And your attorney didn’tshow up?
MR. CHAPMAN: He told me he had to be i n

court today in Sumner County, that he would - - I was told to get a court date from you today an

d he would be here when you said to be here.
THE COURT: Well, that’s fair enough. . . .

. . . . THE COURT: All right, I’m setting your case for trial on Thursday, May 13 th

. MR. CHAPMAN: May the 13 th

. THE COURT: Th at’s this coming Thu rsd ay.

You’ll be giv en a copy of the indictment. . . .

. . . . THE COURT: All right, she’s going to give a copy of a document. You understand what you are charged with?
MR. CHAPMAN: Yes, sir.
THE COURT: All right, I’m going to enter a

plea of not guilty. Your case is set for jury tria l this coming Thursday, May 13 th . Do you unde

rstand that?
MR. CHAPMAN: Yes, sir.
THE COURT: You’ ll stay around and get a copy of the notice. And you might just make a note on the indictment and take it to your atto

rney, set 9: 00 a.m. this coming Thur sd ay. You have-3- discussed with your attorney and y ou do want a jury

trial. Is that c

orrect?
MR. CHAPMAN: Yes, sir.

The tri al w as s et f or t hree (3) days after the appellant was arraigned. When the appellant and his attorney appeared in court on the date set for tria

l, counsel objected to the trial date and requested a continuance. The trial court denied the motion, and after a trial, the jury convicted the appellant of one (1) count

of driving under the influence ascharged in the indictment. From his conviction, the appellant now

brings this appea

l as of right.
II.
In his sole issue on appe

al, the appellant

contends that the t

rial court erre

d in denyin

g hi s motion for a continuanc

e. Initially

, we note that the a

ppellant has faile

d to provide this Court w

ith a complete record regarding the motion for a continuance. I

t is the duty of

the Appellant to

prepare an adequate reco

rd for appellate

review. Tenn. R. A

pp. P. 24(b). “When

a party see

ks appellate review there is a duty to prepare a record w hi ch conveys a fair, accurate and complete account of whattranspired with respect to the issues forming the basis of the appeal.” State v. Bal lard , 85 5 S.W.2d 557, 560 (Tenn. 1993). I n the absence of

an adequate re

cord on appeal, t

his Court must presume that the trial court’s rulings are support ed by suffici ent evidence. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). No verbatim transcript of the proceedings to obtain a continuance was available, so the appellant attempted to submit a statement of the evidence under Tenn. R. App. P. 24(c). Rule 24(c) requires that the statement of the evidence “be f ile d wi th t he cl erk o f th e tr ial cou rt w ith in 9 0 da ys after filing the notice of appeal.” The appellant filed his notice of appeal on June 1, 1999; however, he filed his statement of the evidence on October 18, 1999. It is apparent this filing was more than 90 days after

filing his notice o

f appeal; thus, the

statement of th e evidence was not timely filed under Tenn. R. Crim. P. 24(c). Moreover, the state objected to theappellant’s statement of the evidence in various respects. Fin all y, the trial court expressly rejected the statement of the evidence, finding that such sta tement was untimely

and did not

convey a fair, accurate and complete a ccount of what transpired during the proceedings. As a result, this Court may not consider the appellant’s purported st

atement of the evidence. The record cont ains no evi dence rega rding what transpired during the motion for a continuance or at the appellant’s trial. Therefore, the issue is waived. Tenn. R. App. P. 24(b).
III. Nevertheless,

after consider

ing the limited re

cord presented

to this Court, we will b

riefly addressthe appellant’s issue on the merits. The appellant alleges that, by deny ing the motion for a-4-

continuance, the trial court deprived him of the opportunity

to obtain dis covery, to prep are pleadin gs an d/ormo tions, to subpoena witnesses and/or medical records, and to prepare requests for jury instructions. He also urges that he was denie d his constitutional r

ights to due proc

ess of law and to compulsory

proce ss. The refore, he claims that the trial court erred in denying his motion for a continuance of the trial date. A motion for a continuance is addressed to the sound discretion of t he trial judge, a nd his ruling on the motio

n willnot be disturbed in the absence of an abuse of discretion to the prejudice of the defendant. State v. Hines , 919 S.W.2d 573, 57 9 (Tenn. 1 995). An abuse of discretion is demonstratedby showing that the failure to grant a continuance de nied defendant a fair trial or that it could be reasonably concluded that a different re sult would have followed had the continuance been granted. Id . at 579. The transcript of the arraignment clearly de monstrates that the appellan t was instructed to appear and “get a cour

t d ate” and that counsel “would be here when [the court] said to be here.” Although the appellant argues that he and “his counsel wereinformed just moments before the trial was to begin that the c

ase was set for ju

ry trial,” a

reading of the

arraig nment transcriptclearly refutes such an allega

tion. The trial cou

rt informed the ap

pellant of the tr

ial date at least four (4) times, and the appellan

t expressly a

ffirmed his under

standing that the

trial w ould be held on May 13. As a result, we hold tha

t the trial court di

d not abuse its discr

etion in deny

ing the motion to continue the trial date. This Court is conce

rned that defens

e counsel instruc

ted his client to appear before the trial court at his arraignment without the benefit of counsel. This is not a good pr actice. Our Supr

eme Courthas held that an arraignment “may or may not be a cr

itical stage” of the

criminal p roceedings which would implicate

his right to counsel under the Sixth Amendment. State v. Sutton , 761 S.W.2d 763. 768 (Tenn. 1988). Nonetheless, an arraignment which is limited to the matters prescri

bed in Tenn. R. Crim. P. 10 is not a critical stage. Id. at 769. The record shows that the arraignment was limited to such matte

rs, in that the trial court mere

ly informed

the appellant of t

he charges ag

ainst him, ent ered a pl ea of “no t gui lty” on the appellant’ s behalf and provided the appellant with a copy of the indictment. See Tenn. R. Crim. P. 10(b). Thus, we conclude that thearraignment w as not a “critical stage,” and counsel’s absenc e at t he arraignmen

t did not deprive the

appellant of his constitutional rig

ht to counsel. Add iti ona lly, we recognize that the appellant is statutorily entitled to “fourteen (14) ful l da ys (Sundays and legal holidays excluded) a fter arrest and the return of the indictment or

presentment beforebeing tried for such offense.” Tenn. Code Ann. § 40-14-105. The appellant was indicted on May 3 and was tried

for this offense approximately ten (10) days la ter. However, in State v. Brown , 795 S.W.2d 689, 693 (Tenn. Crim. App. 1990), t his Court observed

that “the legisl

atu re intended that the delay be

tween indictment a

nd trial apply

only where

the indictment or pr

esentment and ar

rest occur sub sta nti all y at t he s ame tim e.” T he ap pel lan t wa s ar res ted for thi s of fens e in Jan uary, but was indictedfour (4) mo

nths late r. Therefore, based upon previous holdings of this Court and our Supreme Court, we concludethat Tenn. Code Ann. § 40-14-105, which requires a fourteen (14) day lapse between the indictment and the trial date, does not require reversal in this case. See Hood v. State , 216 S.W.2d 14, 16 (Tenn. 19 48); Dukes v. State , 578 S.W.2d 659, 662 (Tenn. Crim. App. 1978). This issue is without m erit.-5- IV.
After reviewing the record

presented to this Court, we hold that the trial court did

not abuse its discretion in denying

the appellant’s motion for a continuance. Accordingly, the judg ment of the trial court is affirmed.

___________________________________ JERRY SMITH, JUDGE