FILED

December 17, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9612-CC-00525

)

Appellee, )

) HUMPHREYS COUNTY

)

V. )

) HON. ROBERT E. BURCH, JUDGE

ROBERT K. BOOHER, )

)

Appellant. ) (VIOLATION OF REGISTRATION LAW)

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT K. BOOHER, pro se JOHN KNOX WALKUP 

104 Capps Hill Attorney General & Reporter

Waverly, TN 37185

JANIS L. TURNER

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

DAN M. ALSOBROOKS 

District Attorney General

GEORGE C. SEXTON

Assistant District Attorney General

Humphreys County Courthouse 

Room 205 

Waverly, TN 37185 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
-2-

OPINION

The Defendant, Robert K. Booher, appeals as of right from the judgment

of the Circuit Court of Humphreys County. Following a jury trial, the Defendant

was convicted of driving without proper vehicle registration and driving without a

license, both Class C misdemeanors. In this pro se appeal, Defendant raises

many issues which can collectively be summarized as challenging the

constitutionality of the applicable motor vehicle statutes and the denial of

adequate due process of law. We affirm the judgments of the trial court.

From the sparse record, it appears that on November 20, 1995, Waverly

police officer W.B. Frazier saw the Defendant driving a vehicle without proper

registration plates. See Tenn. Code Ann. § 55-3-102. Upon stopping the vehicle,

OfficerFrazier discovered that Defendant also did not possess a valid Tennessee

driver’s license. See Tenn. Code Ann. § 55-50-301.

The jury found the Defendant guilty of both offenses. The trial court

imposed a suspended sentence of 30 days for each offense and fined him a total

of $100.

The record on appeal contains no motion for new trial filed by the

Defendant. Rule 3(e) of the Tennessee Rules of Appellate Procedure states in

part:

[I]n all cases tried by a jury, no issue presented for review

shall be predicated upon error in the admission or exclusion

of evidence, jury instructions granted or refused, misconduct

of jurors, parties or counsel, or other action committed or

occurring during the trial of the case, or other ground upon

which a new trial is sought, unless the same was specifically
-3-

stated in a motion for a new trial; otherwise, such issues will

be treated as waived.

This rule does not encompass issues which, if decided favorably to the accused,

would result in the dismissal of the prosecution. State v. Keel, 882 S.W.2d 410,

415-16 (Tenn. Crim. App. 1994). Since the relief requested, if granted in the

instant case, would be dismissal of the prosecution, then the waiver provision

contained in Rule 3(e) is not applicable. Thus, the issues presented by

Defendant would normally be considered on the merits.

However, the Defendant has not included the transcript of the trial or any

pre-trial hearings as part of the record on appeal. It is the appellant’s duty to

“have prepared a transcript of such part of the evidence or proceedings as is

necessary to convey a fair, accurate and complete account of what transpired

with respect to those issues that are the bases of appeal.” Tenn. R. App. P.

24(b). When necessary parts of the record are not included on appeal, the court

must presume that the trial court’s ruling was correct. State v. Oody, 823 S.W.2d

554, 559 (Tenn. Crim. App. 1991). Therefore, even if review of the issues

presented is proper in the instant case, this Court must defer to the findings of the

trial court since no transcript is included in the record. 

Furthermore, Defendant was also convicted at a different trial for the same

type of offenses as in the instant case, but which occurred on a different date.

The identical issues presented in the case sub judice were presented in the direct

appeal by Defendant from the other convictions, and were resolved by another

panel of this Court against Defendant. Even if the issues were not waived by

failure to file a complete record, we would adopt the reasoning and analysis of
-4-

the panel of this Court in State v. Robert K. Booher, C.C.A. No. 01C01-9604-CC00131, Humphreys County (Tenn. Crim. App., Nashville, filed Aug. 22, 1997) in

finding that the issues presented in the case sub judice are without merit.

Accordingly, the judgments of the trial court are affirmed.

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

GARY R. WADE, Judge

___________________________________

J. CURWOOD WITT, JR., Judge