Opinion
No. 01-C-01-9601-CC-00047.
February 13, 1997
Montgomery County, Robert W. Wedemeyer, Judge, Driving While Intoxicated.
FOR THE APPELLANT:
N. Reese Bagwell, Attorney at Law.
FOR THE APPELLEE:
Charles W. Burson, Attorney General Reporter, Michael J. Fahey, II, Assistant Attorney General, John W. Carney, Jr., District Attorney General, Steven L. Garrett, Assistant District Attorney General.
AFFIRMED PURSUANT TO RULE 20.
OPINION
The appellant, Neff Joseph Loupe, was convicted of driving while under the influence after a bench trial. He presents three issues for this Court to resolve. He contends the trial court erred in considering the testimony of a police officer regarding (a) the horizontal gaze nystagmus test and (b) the effect of certain over-the-counter medication, and (c) the trial court imposed an excessive sentence. Unfortunately, this Court is precluded from considering these issues because the appellant failed to file either a verbatim transcript or statement of the evidence of the proceedings in the trial court. Instead, this Court must conclusively presume the rulings of the trial court and the sentence imposed by the trial court were correct. Thus, the judgment of the trial court is affirmed pursuant to Rule 20, Tenn. Ct. Crim. App.
When there is no record of the proceedings in the trial court, the appellate court is precluded from considering the issues presented for review. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App.), per. app. denied (Tenn. 1988); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App.), per. app.denied (Tenn. 1987); State v. Morton, 639 S.W.2d 666, 668 (Tenn. Crim. App.), per. app. denied (Tenn. 1982) (failure to file either a verbatim transcript or statement of the evidence); see McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App.) (failure to file either a verbatim transcript or statement of the evidence), cert. denied, 493 U.S. 859, 110 S.Ct. 168, 107 L.Ed.2d 125 (1989), rehg. denied, 493 U.S. 960, 110 S.Ct. 379, 107 L.Ed.2d 364 (1989).
The appellant has the duty to prepare a record which conveys a fair, accurate and complete account of what transpired in the trial court with respect to the issues that form the basis of the appeal. Tenn. R. App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Oody, 823 S.W.2d 554, 558-59 (Tenn. Crim. App.), per. app. denied (Tenn. 1991); Roberts, 755 S.W.2d at 836; Miller, 737 S.W.2d at 558.
See State v. Aucoin, 756 S.W.2d 705, 716 (Tenn. Crim. App. 1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845 (1989); Miller, 737 S.W.2d at 558.
__________________________________________ JOE B. JONES, PRESIDING JUDGE
CONCUR:
_____________________________________ WILLIAM M. BARKER, JUDGE
_____________________________________ J. STEVEN STAFFORD, SPECIAL JUDGE