Court of Criminal Appeals of Tennessee, Knoxville
from the Criminal Court for Knox County No. 105375 G. Scott
Defendant, David Tyrone Green, was convicted of driving under
the influence, a Class A misdemeanor. See T.C.A.
§ 55-10-401 (2012) (amended 2013, 2015). The trial court
sentenced the Defendant to serve fifteen days'
confinement. On appeal, the Defendant contends that the court
erred in sentencing him to a greater sentence than the
minimally required forty-eight hours' confinement. We
affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
B. Rutherford, Knoxville, Tennessee, for the appellant, David
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Senior Counsel; Charme P. Allen, District
Attorney General; and Miriam Johnson, Assistant District
Attorney General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE.
case arises from a December 8, 2013 arrest, in which the
Defendant was subsequently charged with three counts of
driving under the influence (DUI), reckless endangerment with
a deadly weapon, failure to obey traffic control devices,
violating the state registration law, failure to provide
financial responsibility, and violating the implied consent
law. Following a bench trial, the Defendant was convicted of
three counts of DUI and violating the implied consent law.
The court merged all of the DUI convictions into a single
count. The trial transcript is not included in the appellate
At the June 22, 2017 sentencing hearing, the presentence
report was received as an exhibit and reflected that the
Defendant had two previous Georgia theft convictions. The
report reflected that the Defendant was age fifty-seven, had
three children, and had graduated from high school. The
Defendant denied using drugs or alcohol and reported working
for Tennessee American Recycling.
trial court found that the evidence supported a conviction
for reckless endangerment with a deadly weapon and that the
court "cut [the Defendant] a break" by not
convicting him of the offense. The court found that the
Defendant drove on the wrong side of the road when an officer
stopped him and that he performed poorly on field sobriety
tests. The court noted that the Defendant did not take
responsibility for his actions and that the Defendant
testified that he "didn't do anything wrong."
The court sentenced the Defendant to fifteen days'
confinement, to be served on weekends or work release. This
Defendant contends that the trial court erred by sentencing
him to fifteen days' confinement, which is greater than
the minimally required sentence of forty-eight hours. The
State responds that the court did not abuse its discretion
and, alternatively, that the appellate record is inadequate
because it does not include a transcript of the trial, upon
which the court relied during sentencing.
trial court relied on the evidence from the trial in
determining that the minimum sentence was not appropriate.
The Defendant has the burden of preparing a fair, accurate,
and complete account of what transpired in the trial court
relative to the issues raised on appeal. See, e.g.,
State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).
This includes the obligation to have a transcript of the
evidence or proceedings prepared. See T.R.A.P.
24(b). "When the record is incomplete, or does not
contain the proceedings relevant to an issue, this [c]ourt is
precluded from considering the issue." State v.
Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987).
Likewise, "this [c]ourt must conclusively presume that
the ruling of the trial court was correct in all
particulars." Id. (citing State v.
Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App. 1981);
State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim.
App. 1983); State v. Taylor, 669 S.W.2d 694, 699
(Tenn. Crim. App. 1983)); see State v. Ivy, 868
S.W.2d 724, 728 (Tenn. Crim. App. 1993). The Defendant has
failed to prepare an adequate record, and he is not entitled
consideration of the foregoing and the record as a whole, we