        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 5, 2013

            STATE OF TENNESSEE v. DAVID LAMONT SIMPSON

                Direct Appeal from the Circuit Court for Obion County
                   No. CC-11-CR-8      William B. Acree, Jr., Judge


              No. W2012-00292-CCA-R3-CD - Filed February 22, 2013




The defendant, David Lamont Simpson, was convicted of one count of aggravated robbery,
a Class B felony. Thereafter, he was sentenced to a term of fifteen years, to be served at
100%, in the Department of Correction. On appeal, he contends that the evidence is
insufficient to support his conviction. Because the defendant failed to file a transcript of the
evidence on appeal, he is entitled to no relief, and the judgment of conviction is affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, David Lamont Simpson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Thomas A. Thomas, District Attorney General; and Jim Cannon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION


                      Procedural History and Factual Background




      The only information contained in the record regarding the facts underlying the
defendant’s conviction are contained in the affidavit of complaint, which states:
       On 12/21/10, the defendant did enter the Mexican Grocery located at 1207 E
       Main St, Union City, Obion County, Tennessee, along with a co-defendant
       with the intention of robbing the store. The defendant did stand at the back
       door and act as a look-out to warn of any police presence in the area. The co-
       defendant did have a rifle during the robbery. Taken were three Ziplock bags
       full of change. Affiant did observe the two defendants getting into a vehicle
       and did stop the vehicle, observing the Ziplock bags and a large amount of
       change on the seat with the defendants. The defendant . . . was advised of his
       legal rights, which he waived, confessing to the above.

Based upon these acts, the defendant, along with his co-defendant, was indicted by an Obion
County grand jury for one count of aggravated robbery. Following a jury trial, the defendant
was convicted as charged and subsequently sentenced to fifteen years at 100% in the
Department of Correction. The defendant, through counsel, filed a motion for new trial
challenging only the sufficiency of the evidence. Following the denial of that motion on
January 4, 2012, the defendant filed notice of appeal with this court on February 6, 2012.

                                           Analysis

      On appeal, the defendant raises the single issue of sufficiency of the evidence. The
defendant, citing to the trial transcript, asserts that the testimony of two witnesses on cross-
examination support his argument that the jury could not have found him guilty beyond a
reasonable doubt of aggravated robbery.

        In evaluating the sufficiency of the evidence, an appellate court must determine
“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). “A guilty verdict by the jury,
approved by the trial court, accredits the testimony of the witnesses for the State and resolves
all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). The appellate court may not reweigh the evidence and may not substitute its
inferences for those drawn by the trier of fact. State v. Hall, 8 S.W.3d 593, 599 (Tenn.
1999). On appeal, the State is entitled to the strongest legitimate view of the evidence and
all reasonable and legitimate inferences to be drawn from it. State v. Evans, 108 S.W.3d
231, 237 (Tenn. 2003). “Because a verdict of guilt removes the presumption of innocence
and imposes a presumption of guilt, the burden shifts to Defendant upon conviction to show
why the evidence is insufficient to support the verdict.” State v. Thacker, 164 S.W.3d 208,
221 (Tenn. 2005).

       As an initial matter, it appears from the record that the defendant filed an untimely

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notice of appeal in this case. A notice of appeal must be filed within thirty days after the date
of the entry of the judgment appealed from. Tenn. R. App. P. 4(a). In this case, the motion
for new trial was denied on January 4, 2012, and the notice of appeal was not filed until
February 6, 2012, some thirty-three days later. No explanation for the late-filing is contained
in the record. We are aware that “in all criminal cases, the ‘notice of appeal’ document is not
jurisdictional and the filing of such document may be waived in the interest of justice.” Id.
However, even if we were to grant a largesse and excuse the untimely filing and his neglect
in failing to explain that failure, the defendant would still be precluded from establishing his
burden of proof in this case.

        As pointed out by the State, “in the absence of a verbatim transcript of the evidence,
the [defendant] cannot show that the evidence is legally insufficient to support the jury
verdict.” A complete record on appeal is necessary for adequate appellate review, and, in the
absence of an adequate record, this court “must conclusively presume that the ruling of the
trial court . . . was correct.” State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988);
see also Tenn. R. App. P. 24(b). “Where the record is incomplete and does not contain . . .
portions of the record upon which the party relies, an appellate court is precluded from
considering the issue.” State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993). Moreover,
the rules of appellate procedure clearly placed upon the defendant, as the appealing party, the
duty of preparing an adequate record. Tenn. R. App. P. 24(b).

       Despite references to the transcript in the defendant’s brief, no transcript is contained
within the record before us. A notice from the Obion County Circuit Court Clerk is
contained in the record certifying that no transcript had been filed with the court as of April
6, 2012. No reason is given in the record for the omission, nor does the record contain a
statement of the evidence prepared by the defendant. See Tenn. R. App. P. 24(c). As such,
we are simply unable to review the sufficiency of the evidence in the case, and we must
presume that the trial court’s determination was correct. See State v. Oody, 823 S.W.2d 554,
559 (Tenn. Crim. App. 1991). The defendant is not entitled to relief, as, on this record, he
has failed to show why the evidence is insufficient to support the jury’s verdict.

                                       CONCLUSION

       Based upon the foregoing, the judgment of conviction is affirmed.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE

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