           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

                STATE OF TENNESSEE v. BERNABE RODRIGUEZ

                Direct Appeal from the Criminal Court for Davidson County
                        Nos. 2010-C-2592      Steve Dozier, Judge




                    No. M2012-01041-CCA-R3-CD - Filed March 12, 2014



The Defendant, Bernabe Rodriguez, has appealed the Davidson County Criminal Court’s
denial of his motion to sever the counts in his indictment. The Defendant filed a motion to
sever, and the trial court denied the motion. The appellate record, however, does not contain
a transcript of the hearing on the Defendant’s motion to sever. Our review of the record
reveals that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the
Court of Criminal Appeals. Accordingly, the judgment of the trial court is affirmed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and J EFFREY S. B IVINS, JJ., joined.

Ivan Lopez, Nashville, Tennessee, for the Appellant, Bernabe Rodriguez.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; Pamela Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.




                                  MEMORANDUM OPINION 1


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           Rule 20 provides as follows:

       The Court, with the concurrence of all judges participating in the case, when an opinion
       would have no precedential value, may affirm the judgment or action of the trial court by
       On September 24, 2010, a Davidson County grand jury indicted the Defendant for two
counts of aggravated sexual battery. On June 13, 2011, the Defendant filed a motion for
severance of offenses. Later, a jury convicted the Defendant of one count of aggravated
sexual battery, a Class B felony. After a sentencing hearing, the trial court sentenced the
Defendant, a Range I standard offender, to serve eleven years in the Tennessee Department
of Correction.

       The Defendant filed a timely motion for new trial, which the trial court denied after
a hearing on October 17, 2011. On March 20, 2012, the Defendant filed a petition for post-
conviction relief, requesting a delayed appeal due to his attorney’s failure to file a notice of
appeal. On April 5, 2012, the trial court granted the Defendant a delayed appeal.

        The Defendant’s sole issue on appeal is whether the trial court erred when it denied
his motion to sever the counts in the indictment. The State submits that the Defendant has
waived all challenges to the trial court’s denial of relief by failing to include the transcript
of the severance hearing in the record. We agree.

       It is the Defendant’s duty to ensure that the record on appeal contains all of the
evidence relevant to those issues which are the bases of the appeal. See Tenn. R. App. P.
24(b); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). This Court is unable to
consider an issue which is not preserved in the record for review. See Banes, 874 S.W.2d
at 82. Accordingly, the Defendant’s failure to include a complete transcript of the
proceedings forming the basis of this appeal results in waiver to any challenge of the lower
court’s rulings. See generally State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993)
(appellant’s failure to provide court with complete record relevant to issues presented
constitutes waiver of issue); State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990)
(appellate court is precluded from considering issue when record does not contain transcript


       memorandum opinion rather than by formal opinion, when:

       (1)(a) The judgment is rendered or the action is taken in a proceeding before the trial judge
       without a jury, and such judgment or action is not a determination of guilt, and the evidence
       does not preponderate against the finding of the trial judge, . . . and

       (2) No error of law requiring a reversal of the judgment or action is apparent on the record.
       ...

       Tenn. Ct. Crim. App. R. 20.



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of what transpired in trial court with respect to that issue). Accordingly, “[i]n the absence
of an adequate record on appeal, this court must presume that the trial court’s rulings were
supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.
1991).

       Because an opinion would have no precedential value and because no error of law
requiring a reversal of the action is apparent on the record, we affirm the criminal court’s
order pursuant to Rule 20. See Tenn. Ct. Crim. App. R. 20.

                                     III. Conclusion

       Accordingly, the judgment of the trial court is affirmed in accordance with Rule 20,
Rules of the Court of Criminal Appeals.

                                                  _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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