# FILED July 2, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9706- CC-00221 ) Appellee, ) ) ) WARREN COUNTY VS. ) ) HON. CHA RLES D. HASTON LAWR ENC E RAL PH, JR ., ) JUDGE ) Appe llant. ) (Burglar y of Autom obile, Th eft, ) DUI, etc .)
ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : AUBREY L. HARPER JOHN KNOX WALKUP 114 North CollegeStreet Attorney Generaland Reporter P.O. Box 588 McMinnvill e, TN 37111-0588 JANIS L. TURNER Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 WILLIAM LOCKE Distri ct Attor ney General ProfessionalBuilding McMinnvill e, TN 37110
OPINION FILED ________________________ AFFIRMED IN PART; REVERSED I N PART DAVID H. WELLES , JUD GE1 Tenn. Code Ann. §§ 39-14-402(a)(4); 39-14-103; 55-8-132; 39-16- 60 3; 39-16-602; 55-50-504; 55-10-616; 55- 10-401. -2-



# OPINION

The Defendant, Lawrence “Gomer” Ralph, Jr., appeal s as of ri ght pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was conv icted on
a Wa rren Coun ty jury ve rdict of burglary

of an automobil e, theft over $1,000, failure to yiel d to emergency li ghts, evadi ng arrest, resisti ng arrest, violat ion of his habitual traffic offender status, an d seven th-offens e DUI. 1 He was sentenced as
a multip le Ran ge II offe nder to four ye ars for b urgla ry of an automobile, seven years for thef

t o ver $1,000, and four year s for the hab itual t raffi c offender violat ion. For the m isdem eanor o ffenses, h e was s entenc ed to thirty days in the county jail forfailure to yield to emergency light s, nine months at

75% for evading arrest, four months at 75% for resi sting arrest, and three hu ndred d ays for D UI. The sentences for theft over $1,000, failure to yiel d, and resisting arre st were ordered to be serv ed concurrent t o each other but

consecutive to the oth er sentences, all of

which were order

ed to run cons ecutive to each other for an effective se ntence of sixteen ye ars and eight mo nths.

The Defe ndan t appe als his convi ctionsand sentences and argues (1) that he was brought befo re the prosp ective ju rors pr ior to jury select ion wh ile wearing shackles and th at this prejudiced him; (2) t hat the trial court erred by ord ering
consecu tive sentence s; and (3) that the t rial court er red in classif ying him as a Range II offender. W e affirm in part and rev erse in part

the judgment of t he trial court.-3- At the time of

the offens e, the Defendant was a res ident of McMi nnvill e, T enne ssee. His fath er, Cu rly Ferre ll, ran a p ool ha ll on Ma in Stre et in McMinnvill e. The victi m in this case, A.P. Ikear d, began to vi sit the po o l hall a few days before the offenseoccurred on November 2, 1994. The vi ctim test ified that he had b een re tired sin ce 19 84 an d that h e was learnin g to pla y pool. On the morn ing of N ovem ber 2, th e victim went to the po ol hall at approxi mately 7:00 a.m. The vict im had seen the Defendant at the pool h all and knew that he was Ferre ll’s son. That morning, the Defendant ask ed the victim to give him a ride to
a relative’s house to cut ti mber. The vict im owned a 1984 F o rd LTD that he stated was in good condit ion and worth $2, 500. The vict im did no t recal l ever taking the Defendant anywhere pri or to the t ime in questi on. Fred Thomas rode with them that

morning.

The victim took the Defendant to the rel ative’ s house and stayed during the day. Several other

persons were prese nt to cut the timber, but the vi ctim did not partici pate. The victi m smelled alcohol on the Defendant but did notsee him drinking. T he victi m, the Defendant, and Thomas returned to t he pool hallat around 11:00 or 11:30 a.m. Later t hat day, Stanton M inton, the victim’s neighb or, came to t he po ol h alland ask ed t he v ict im to ri de with h im to lo ok a t so me dogwood trees. Th e victim left h is c ar behind the p ool hall and he h id his keys under the driver’s seat . Minton suggested that he remove the distri butorwire to preventanyon e from taking the veh icle. Th e victim took th e wire a nd pu t it in his pocke t. They left at approxi mately 4:00 p. m. and returned at approximatel y 11:00 p.m. They had d riven a round the are a and to the to wn of V iola. Th e victim denied that he ha d been drinking th at night.-4- The victim and Minton returned to the vict im’s home because they agreed to retrieve his c ar the ne xt mornin g. Som eone to ld him tha t h is car had been stolen, and he file d a com plaint at the Wa rren Co unty Jail. Th e victim we nt to
see his car at

Woodlee’s Garage the next day and notice d seve ral bee r cans in the vehicle. The car had sustai ned damage estim ated a t $1,50 0. The victim never gave the Defenda nt permission to use his car.

On the evening of

Novem ber 2, 19 94, at app roximate ly 9:30 p.m ., Officer Chuck Taylor of the McMinnvil le Police Department observed a blue 1984 F ord LTD at the i ntersecti on of Locust St reet and Spring S tr eet. When the offi cer noticed thatthe car ran a stop sign and made a wi de, sweeping turn onto Spring Street, he beg an to follow t he vehicle. The car was on the wrong side of t he road
mom entarily, but the oc cupan t continue d to drive and st opped at two traff ic lights. The officer

observed one person in the car. Th e vehic le pulled over at the pool hall. The officer

activated his emergency l ights an d th e car sped away. The officer pursued the vehi cle at speeds ex ceeding ninety mil es perhour. The car
was again driv

en on the wrong si de of the roadand without lights. When the car reached the inter

section of

highw ays 127 and 8, the driver braked har d in an attemptto make a turn. The driver l ost controland the car sl ammed into a guard rail. When the car stopped, t he officer pulled a longside and r ecognized the driver as th e Defe ndant.

The Defendant jumped out of t he car and ran along the guar drail, jumped the guardrail , and ran into t he bushes. Offi cer Todd Bess ran after the Defendant and sho ute d fo r hi m t o stop . The Defendant event ually fell down and Off icer Bess caught him. The Defen dant strugg led whe n Bess t ried to hand cuff him. An-5-

off-duty officer, Tony Taylor, who was riding with Bess, admi nistered pepper gas sprayto subdue the Defendant. He was h andcu ff ed and brought back to the patrol cars. The Defendant smelle d of alcohol , appeared unsteady on his fee t, and would not perform any fiel d sobriety tests. Officers found six em pty beer
cans in the car . The Defendant ref used to take an i ntoximeter test at the Warren Cou nty Jail.

The Defendant was indi cted for bur glary of an automobile, theft over $1,000, failur

e to yiel d to emergency li ghts, evadi ng arrest, resisti ng arres t , violat ion of his ha bitual tra ffic of fender stat us, DUI, and driving on a rev oked license. The cha rg e of driv ing on a revoked license was di smissed and the Defendant was convi cted by a jury of the rema ining o ffense s. He n ow ap peals his convicti ons and sentences.

I. VI OLATION OF RIGHT TO A FAI R TRIAL As his fi rst iss ue, the Defendant argues that he was brought i n front of the jury venire pr ior to j ury select ion wearing s hackles, pr eventing hi m from receivi ng a fair t rial. The record of t he proce edings indi cates nothi ng regarding t he Defendant wearing shackl es. No object ions by the Defen dant are found and the record contains no other evidenceat a ll rel ating to t he Defendant’s c laim. The trialtranscript re veals no evidenc e of shac kling, nor do we have before us t he Defe ndan t’s Motion for Ne w Trial. Failure to make a contemporaneous objec tion waives considerat ion by thi s court of the issueon app eal. See Tenn. R. App. P. 36(a); State v. Killebr ew , 760 S.W .2d 228 , 235 (T enn. C rim. A pp.) , perm to appeal denied (Tenn. 198 8). Withou t a reco rd below w hich co ntains evidence-6-

thatan issue exists, we have nothing to review on appeal . Therefore, this i ssue has been waived.

II. IMPROPER SE NTENCING Next, the Defendant argues t hat the trial court err ed in sentenci ng him as
a multipl e offender and or dering that

the sentencesbe served consecutively. The State correc tly points out tha t the on ly piece s of evid ence in the record regarding sentencing are the judg ment of the t rial cour t and the not ices sub mitte d by the State. The transcript

of the sentencing hearing i s not in the record befor e us.

It is the dut

y of an appell ant to prepar e an adequate recor

d to al low a meaningful review on appea l. Tenn. R . App. P. 2 4(b); State v . Ballard , 855 S.W.2d 557, 56 0-61 (T enn. 19 93); State v. Robe rts , 755 S.W.2d 833, 836 (Tenn. Cri m. App. 19 88); State v. Bunch , 646 S.W.2d 158, 160 (Tenn.1983) . Given the absence of the transcript of the se ntencing he ari ng from the record, we must pre sume the trialcourt’s fi ndings with respectto the trans cript are co rrect. State
v. Richardson , 87 5 S.W .2d 671 , 674 (T enn. C rim. App . 1993); State v. Boling , 840 S.W.2 d 944 , 95 1 (Te nn. Cri m. App. 1992). Because we ca nnot a dequ ately review t he sentencing pr ocedure, thi s issue has been wai ved.

II I. PLAI N ERROR This Court is authorized, in its disc r etion, to cons ider iss ues n ot prop erly presented for revi ew “(1) to preventneedless li tigati on, (2) to prevent i njury to the interests of the publ ic, and (3)to prevent prejudice to the j udi cial process.” Tenn . R. App . P. 13(b).-7- Although the Defendant cannot pr evail on t he two issues he br ought before this Cour

t, it hasbec ome eviden t that pla in error exists in the rec ord. P lain error may be addressed by an appel late court even when not rai sed in a motion fo r new trial. State v. Ogle , 666 S.W.2d 58 (Tenn. 1984). The Tennessee Rul es of Criminal Procedure provi de, in pert inent part , the fol lowing: An error whi ch has affected the substant ial rights of an accused may be noticed at

any time, ev

en though n ot ra ised in the mo tion for a new trial or assigned as e rro r on ap peal, in the discr etion of t he appellate court wh ere nec essary to do sub stantial justice
. Tenn. R . Crim. P. 52(b).

A substanti al right

is one of f undamental proport ions which is constitut ional in nature. See State v. Adkisson , 899 S.W .2d 626, 639 (Tenn. Crim . App. 1994 ). An err or may be recognized as “plain” i f it seri ously affects t he fairness o f a judici al procee ding. Id . We believ e it is nece ssary to addre ss an error in this
case in order to do substanti al justi ce. Because we beli eve prosecuti on of the Defendant forburglary and theft of the same automobile off ends notions of

due process in this particul ar case , we are c omp elle d to rev erse th e Def enda nt’s conviction for burglar y.

In 1991 oursupreme court hel d that due process precludes con victi on for kidnap pin g where the detent ion of thevicti m occurs as merely i ncidental to the commission of anothe r felony suc h as rob bery or rap e. State v. A nthony , 817 S.W.2d 299, 300 (T enn. 19 91). In support of its holdi ng, the Anthonycourt noted that“every r

obbery, by definit ion, inv olves som e dete ntion a gains t the will of the victim.” Id. at 306. The cou rt announced that t he appropriate test to determine when multiple convict ions offend due process in a kidnapping and robbery case2 In making this assertion, we note the broa d legislative definition of “e nter ” as incl uding “[i]ntrusi on

of any part of t he body” and “ [i]ntrusion of any object i n physical

contactwith t he bo dy or any object controlled by remote control, electronic or otherwise.” Tenn. Code Ann . § 39-14-402(b)(1)-(2). -8- is “whether

the confi nement, movement, or detention is essen tially incidenta l to the acc omp anying fe lony and is not, there fore, sufficien t to suppo rt a sepa rate convicti on for kidnap ping, or w hether it is sig nificant en ough, in a nd of itself, to warrantindependent pr osecu tion and i s, theref ore, suff icient

to support s uch a conviction .” Id. ; see State v. Dixon , 957 S.W .2d 532 , 534 (T enn. 19 97); State v. Coleman , 865 S.W.2d 455, 457 (T enn. 19 93); State v. Binion , 947 S.W.2d 867, 872-73 (Tenn . Crim. A pp. 199 6).

In Anthony , the court indicated that a due pr ocess review nece ssarily includesan an alysis o f the crim in al s tatutes invo lved and legislative inte nt. “In examining these general guidelines, it must be r emembered that indi vidual cas es are sometimes dependent upon t he wordi ng of the particul ar statutes being construed, and upon the clarity of . . . legislative intent.” Anthony , 817 S.W.2d at 306. It would be diffi cult, although not i mpossible, to steal a ca r wi tho ut i n so me manner entering at least som e portion of the ca r. 2 In the case sub judice , we do not believe t hat the legi slature i ntended that stea ling thi s car would const itute two crimes— burglary and theft.

This Court has appli ed the Anthonyanalysis to a case involv ing burglary of an auto mobile and attem pted the ft. State v. R oberts , 943 S.W.2d 403, 406-07 (Tenn. Crim. App. 1996). In Robe rts we noted that not every attempted thef t of
a vehicle i ncludes, by definit ion, a burglary of that vehicle; and the refore Anthonyis “not str ictly appl icable” to a defendant so ch arge d. Id. at 406. Howeve r, we concluded in Ro be rts that “t he due process concerns underlyi ng the-9-

holding of Anthonymand ate[d] a similar result.” Id. Robe rts is contr ollingupon this case, notwi thstandingthe fact that here t he Cou rt consid ers convict ions of burglary a nd theft, rath er than a ttempte d theft.

In Robe rts , we stated, If, forexample, the State has all eged and shown that the defendant entered each vehicle with theintent t o commit some felony, theft, or assa ult other than to steal the vehicl e, such as to steal the radio or otherarticl es from withi n, and t hen atte mpted to stealthe vehicl e, then those all eged facts wou ld l ikely r equire a di fferent

result f rom the one w e reach here. However , here the ac ts of entr

y into t he vehicles as alleged an d proven by the State are merely an essent ial and incidental step i n the attemptedtheft of the vehicl es themselves. The act of break ing into the vehicl es is not si gnificant enough, i n and of itself, to warrant indepen dent prosec ution where the defen dant is also convicted of attempted t heft. . . . [U] nder the facts .
. . convicti ons for both bu rglary and attemp te d theft v iolate t he principles of Anthony

. Id. at 407.

In t he case at bar, the Defendant’ s entry i nto the vi ctim’s ve hi cle wa s neces sary to achieve the theft of the car. There is no evi dence of a s eparat e intent to stea l an y i tems

from insi de the vehicl e, nor isthe re evi dence th at s ome otherfelony was i ntended or that items were in fact

taken from th e vehicle. Under these facts, th e burg lary of th e auto mob ile, witho ut mo re, was esse ntially incidental to the theft and “part and parcel of that offense .” See Anthony , 817 S.W.2d at 307. Therefore, we concl ude that the Defendant’s rightto due process of law as express ed i n Anthonyand applied i n Robe rts require revers al of his conviction for burglar y.-10- The Defenda nt’s conviction for burglary i s re verse d and vacate d. In all otherrespects t he judgment is af firmed. Thi s case is remanded to the trial court for the purpose of enteri ng a judgment consi stent wit h this opi nion.

________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ JOE G. RILE Y, J UDGE