            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                      January 10, 2012 Session

                      STATE OF TENNESSEE v. DORIS MILLER

                 Direct Appeal from the Criminal Court for Shelby County
                          No. 08-03558    W. Mark Ward, Judge


                    No. W2011-01181-CCA-R3-CD - Filed April 26, 2012


The defendant, Doris Miller, was convicted by a Shelby County Criminal Court jury of
assault by provocative contact, a Class B misdemeanor, and sentenced to three months in the
county workhouse. On appeal, she challenges the sufficiency of the convicting evidence and
the sentence imposed by the trial court. After review, we affirm the judgment of the trial
court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Gerald S. Green, Memphis, Tennessee, for the appellant, Doris Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Betsy Weintraub, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                OPINION

                                                  FACTS

       The defendant was charged with assault by causing bodily harm due to her
involvement in an altercation with the manager of a shopping center who told her she could
not park in a certain parking space unless she was a customer.1 The case was tried by jury


        1
           We glean this brief factual background from the defendant’s brief, as the defendant failed to file
either a transcript of the evidence from trial or a statement of the evidence as provided for under Tennessee
                                                                                                 (continued...)
on March 1-3, 2011, and the jury found the defendant guilty of the lesser-included offense
of assault by provocative contact.

                                          ANALYSIS

                                 I. Sufficiency of the Evidence

       The defendant challenges the sufficiency of the convicting evidence, arguing that the
proof showed she was first assaulted by the “victim” and that finger-pointing in the midst
of an argument does not constitute provocative contact.

        When the sufficiency of the convicting evidence is challenged, the relevant question
of the reviewing court is “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State
v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).


       1
         (...continued)
Rule of Appellate Procedure 24(c).

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        “A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).

       To sustain a conviction for assault by provocative contact, the State had to show that
the defendant “[i]ntentionally or knowingly cause[d] physical contact with another and a
reasonable person would regard the contact as extremely offensive or provocative.” Tenn.
Code Ann. § 39-13-101(a)(3).

       We note that we are wholly unable to review the defendant’s challenge to the
sufficiency of the convicting evidence, as the defendant has failed to include a transcript of
the proof at trial or a statement of the evidence in the record to this court. On appeal, the
defendant has “a duty to prepare a record which conveys a fair, accurate and complete
account of what transpired with respect to the issues forming the basis of the appeal.” State
v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983)). “Absent the necessary relevant material in the record an appellate court
cannot consider the merits of an issue.” Id. at 561.

               It is well-established that an appellate court is precluded from
       considering an issue when the record does not contain a transcript or statement
       of what transpired in the trial court with respect to that issue. Moreover, the
       appellate court must conclusively presume that the ruling of the trial judge
       was correct, the evidence was sufficient to support the defendant’s conviction,
       or the defendant received a fair and impartial trial. In summary, a defendant
       is effectively denied appellate review of an issue when the record transmitted
       to the appellate court does not contain a transcription of the relevant
       proceedings in the trial court.

State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990) (footnotes omitted). Thus,
the defendant has waived this claim, and we must presume that the evidence was sufficient
to support her conviction.

                                       II. Sentencing

       The defendant challenges the sentence imposed by the trial court. Without specific
argument in support of such assertion, the defendant merely states that the trial court failed
to sentence her properly.



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        The trial court conducted a sentencing hearing, at which the State argued that the
defendant should receive a sentence of probation and possibly service of a couple of days
in jail as the defendant did not seem to take responsibility for the illegality of her actions.
Defense counsel argued that the defendant was actually assaulted first and that she should
receive diversion. The court reviewed a Tennessee Bureau of Investigation report
concerning the defendant and noted that she had been charged with eight offenses in the
past, five of which were assaults or batteries, of which there was “no disposition located.”
The court observed that the defendant had a 1989 conviction in Illinois for battery.

        The defendant then testified that the battery conviction was accurate as she “did fight
a young lady . . . [when she] was about nineteen, or twenty years old[.]” However, she
maintained that a 1989 aggravated assault charge was not her. Asked by the court whether
she was employed, the defendant said that she worked with troubled youth in an internship
for foster care and adoption and also worked at Sears. She said that she was also a full-time
student and was graduating the next month with a degree in social work. She stated that she
had three children who had all graduated from high school.

        On cross-examination, the defendant admitted that it did not set a good example to
get into fights in front of her daughter, but she said that she “was attacked in front of her
daughter.” She stated that she took responsibility for pointing her finger at the victim and
telling him to not touch her car but maintained that “he threw [her] down and [she] did not
hit him[.]” She stated that she did not commit an assault because she “was just pointing [her]
finger while [she] was talking to [the victim].” The victim said that her daughter was a
customer of the shopping center, having been to the Little Caesar’s Pizza, and she was
picking up her daughter. She admitted that she was aware the shopping center had a policy
against people picking up their children at the shopping center unless they were customers
and that she parked in a space marked for a cleaning business only.

        In sentencing the defendant, the trial court noted that it must base its sentence on the
purposes and principles of the sentencing act, including the imposition of a sentence justly
deserved in relation to the seriousness of the offense, and that it must consider the
defendant’s potential, or lack thereof, for rehabilitation. The court observed that the
defendant had a prior criminal history consisting of a battery conviction in Illinois. It noted
that the defendant had multiple other charges but that it could not put any weight on those
given the dispositions were unknown. The court observed that it was relevant that the
defendant’s prior conviction was for battery given that was “pretty much the same thing that
she’s been charged with here.” Accordingly, the court imposed a sentence of three months.

      In determining whether the defendant should receive an alternative sentence, the court
surmised that the assault committed by the defendant was actually more serious than that of

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which she was convicted in that she “thr[e]w her shoe” at and bit the victim. The court
found that the defendant was untruthful and had “committed perjury throughout the trial and
ha[d] lied, repeatedly, throughout the trial about everything that happened out there.” The
court concluded that it was going to deny an alternative sentence, summarizing as follows:
“She did poke the [victim] in the face. She did bite him and she did throw a shoe at him and
she tried to make herself look as good as she possibl[y] could, but basically she’s a
perjurer[.]”

       Appellate review of misdemeanor sentencing is de novo on the record with a
presumption that the trial court’s determinations are correct. Tenn. Code Ann. §§ 40-35-
401(d), -402(d). This presumption of correctness is conditioned upon the affirmative
showing that the trial court considered the relevant facts, circumstances, and sentencing
principles. State v. Ashby, 823 S .W.2d 166, 169 (Tenn. 1991). The burden is on the
appealing party to show that the sentence is improper. See Tenn. Code Ann. § 40-35-
401(d), Sentencing Commission Cmts.

       The trial court is afforded considerable latitude in misdemeanor sentencing. See, e.g.,
State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). When imposing a
misdemeanor sentence, the trial court is not required to conduct a sentencing hearing, but
it must afford the parties a reasonable opportunity to address the length and manner of
service of the sentence. Tenn. Code Ann. § 40-35-302(a). Moreover, the trial court is not
required to place specific findings on the record, State v. Troutman, 979 S.W.2d 271, 274
(Tenn. 1998), but must consider the principles of sentencing and the appropriate
enhancement and mitigating factors in determining the percentage of the sentence to be
served in actual confinement. Tenn. Code Ann. § 40-35-302(d).

      A trial court may deny alternative sentencing and sentence a defendant to
confinement based on any one of the following considerations:

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Id. § 40-35-103(1). In addition, “[t]he potential or lack of potential for the rehabilitation or

                                              -5-
treatment of the defendant should be considered in determining the sentence alternative or
length of a term to be imposed.” Id. § 40-35-103(5); see also State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). Moreover, lack of truthfulness is probative on the issue
of a defendant’s potential for rehabilitation and should be considered in granting or denying
an alternative sentence. State v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984); see also State v.
Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim. App. 1992).

        We initially note that the defendant has waived this claim due to her failure to provide
any argument concerning why the sentence imposed by the trial court was improper. See
Tenn. Ct. Crim. App. R. 10(b). Waiver notwithstanding, the record does not show that the
trial court exceeded the great flexibility and discretion extended to trial courts in fashioning
a misdemeanor sentence. In imposing a three-month sentence, the trial court relied on the
defendant’s prior history of criminal conduct, noting that she had a prior battery conviction,
which was similar in character to her present offense. In denying an alternative sentence,
the court determined that the defendant’s actions were actually more serious than that of the
offense of which she was convicted and also that the defendant had been untruthful with the
court. The sentence imposed by the trial court was not improper.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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