                                                                                           09/25/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHILLLE
                              September 12, 2017 Session

              STATE OF TENNESSEE v. SHARON DAUGHERTY

                 Appeal from the Criminal Court for Macon County
                      No. 15-CR-81       Brody Kane, Judge


                            No. M2016-02552-CCA-R3-CD


The Appellant, Sharon Daugherty, appeals the Macon County Criminal Court’s order
denying her motion to recover firearms confiscated during a search of her home. On appeal,
the Appellant contends that she is entitled to the return of the property because the State
dismissed the criminal charges against her. Because the Appellant has no appeal as of right
from the denial of a motion to recover confiscated property, we dismiss the appeal.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROBERT L. HOLLOWAY, JR., JJ., joined.

Harry A. Christensen, Lebanon, Tennessee, for the appellant, Sharon Daugherty.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General; and Jason Lawson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        On August 24, 2016, the Appellant filed a motion to recover firearms confiscated
from her home by the drug task force after the execution of a search warrant. The motion
stated that the Appellant’s husband, Tommy Daugherty, was arrested on drug-related charges
after the search. According to the motion, Mr. Daugherty ultimately pleaded guilty to a
single drug-related offense in exchange for the dismissal of the remaining charges, including
a weapons-related offense relative to the seized firearms. Although the motion does not
identify the State’s charges against the Appellant, the motion states that all of her charges
were dismissed after Mr. Daugherty pleaded guilty.


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        At the November 4, 2016 motion hearing, counsel stated that the Appellant was
initially charged with drug possession with the intent to sell because the Appellant “had
some personal pharmaceuticals that apparently weren’t satisfactorily up to count.” Counsel
said that during plea negotiations with the prosecutor, the parties agreed the charges against
the Appellant would be dismissed. Counsel conceded that he and the prosecutor did not
discuss the confiscated firearms during plea negotiations but stated that no forfeiture warrant
was filed and that the police investigation was closed. Counsel stated that the Appellant had
no pending criminal charges against her, that she was not a convicted felon, that she needed
money to pay her mortgage during Mr. Daugherty’s confinement, and that she intended to
sell the firearms to meet her financial obligations.

        The prosecutor opposed the motion on the basis that Mr. Daugherty pleaded guilty to
selling narcotics, which were the same type of narcotics for which the Appellant “was short
on her pill count.” The prosecutor said that the Appellant and Mr. Daugherty were charged
after a controlled drug purchase. The prosecutor also opposed the motion on the basis that
the Appellant had failed to provide proof of ownership of the confiscated firearms. The
prosecutor believed the firearms belonged to Mr. Daugherty and stated the prosecutor could
not provide the firearms to a third party. The prosecutor stated that Mr. Daugherty was
prohibited from owning and possessing firearms because he was now a convicted felon and
without proof that the firearms belonged to the Appellant, she was not entitled to recover
them.

       Upon questioning by the trial court, the Appellant testified that she could not provide
the dates upon which the firearms were purchased. The following exchange occurred:

       The Court:            Tell me what guns you’re wanting back.
       [The Appellant]:      I’d like to have all of them.
       The Court:            I don’t want you looking at a sheet, ma’am. I want you
                             to tell me what they are.
       [The Appellant]:      I couldn’t tell you what they are. I mean, I’ll just be
                             honest with you.
       The Court:            Motion denied.

       In a written order, the trial court found that the Appellant could not provide a general
description or identify the make and model of any firearm seized by the police during the
drug-related investigation and that the Appellant did not provide information relative to the
length of her marriage to Mr. Daugherty. The court determined that the firearms were
possessed during the commission of a criminal offense and were subject to asset forfeiture.
The court found that the Appellant was unable to establish any interest in the firearms, that
no evidence showed she acquired any of the firearms or was the lawful owner, and that no



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evidence showed the firearms were acquired by Mr. Daugherty during the Appellant’s
marriage to him. This appeal followed.

       The Appellant contends that the trial court erred by denying her motion. She argues
that the firearms are “family property” and that she is entitled to receive them. The State
argues that the appeal should be dismissed because the Appellant does not have an appeal as
of right from the trial court’s order. We agree with the State.

       As a preliminary matter, we note that the appellate record only contains the
Appellant’s motion, the motion hearing transcript, and the trial court’s written order.
Although the Appellant’s motion is restricted to the return of the firearms seized during the
search of her and Mr. Daugherty’s home, nothing related to the relevant criminal
investigation against her and her husband is included in the appellate record before this
court. The Appellant 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). “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).

        In any event, we conclude that this court does not have jurisdiction to consider the
Appellant’s appeal. See T.R.A.P. 13(b) (stating that “[t]he appellate court shall also consider
whether the trial and appellate court have jurisdiction over the subject matter, whether or not
presented for review”). Tennessee Rule of Appellate Procedure Rule 3(b) states, in relevant
part, that an appeal as of right in a criminal action “lies from any judgment of conviction
entered by a trial court from which an appeal lies to the . . . Court of Criminal Appeals.” In
the present case, no judgment of conviction exists because, as the parties agree, the charges
against the Appellant were dismissed.

       Furthermore, the Appellant’s reliance on Tennessee Criminal Procedure Rule 41(g),
related to the return of property seized pursuant to an unlawful or invalid search by law
enforcement to provide a basis for this appeal, is misplaced. The Appellant is not appealing
the denial of a motion pursuant to Tennessee Rule of Criminal Procedure Rule 41, and even
if she were, an appeal as of right from the denial of a Rule 41 motion to obtain seized
property only lies when the property seized is the basis of a successful motion to suppress
evidence. See State v. Rowland, 520 S.W.3d 542, 548 (Tenn. 2017). No evidence shows the
firearms were the subject of a successful motion to suppress evidence before the charges


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against her were dismissed. Therefore, this court does not have jurisdiction to determine
whether the Appellant is entitled to receive the firearms.

      In consideration of the foregoing and the record as a whole, the appeal is dismissed.



                                         _____________________________________
                                         ROBERT H. MONTGOMERY, JR., JUDGE




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