         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON                 FILED
                            MAY SESSION, 1997           September 10, 1997

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE,                )    C.C.A. NO. 02C01-9606-CC-00189
                                   )
            Appellee,              )
                                   )    CARROLL COUNTY
                                   )
V.                                 )
                                   )    HON. C. CREED M cGINLEY,
JAMES LEONARD CORDER               )    JUDGE
                                   )
            Appellant.             )    (AGGRAVATED ASSAULT)




FOR THE APPELLANT:                 FOR THE APPELLEE:

GUY T. WILKINSON                   JOHN KNOX WALKUP
District Public Defender           Attorney General & Reporter

BILLY R. ROE, JR.                  SARAH M. BRANCH
Assistant Public Defender          Assistant Attorney General
117 North Forrest Avenue           425 Fifth Avenue North
P.O. Box 633                       2nd Floor, Cordell Hull Building
Camden, TN 38320                   Nashville, TN 37243

                                   G. ROBERT RADFORD
                                   District Attorney General

                                   ELEANOR CAHILL
                                   Assistant District Attorney General
                                   111 Church Street
                                   P.O. Box 686
                                   Huntingdon, TN 38344



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                              OPINION

       The Defendant, James Leonard Corder, was charged in an indictment

returned by the Carroll County grand jury with two counts of aggravated assault

against Bobbie Jo Douglas (one by use of a deadly weapon and the other by

causing serious bodily injury), one count of aggravated assault upon Martha Jo

Hindman, and one count of aggravated kidnapping of Bobbie Jo Douglas. All

acts were alleged to have been committed on the same date. The jury found

Defendant guilty of aggravated assault upon Martha Jo Hindman, guilty of

aggravated assault upon Bobbie Jo Douglas by causing her serious bodily injury,

and guilty of the lesser included offense of assault on the other charge of

aggravated assault. The Defendant was acquitted of the charge of aggravated

kidnapping.    The trial court subsequently merged the misdemeanor assault

conviction with the conviction of aggravated assault upon Bobbie Jo Douglas and

sentenced Defendant to serve six (6) years imprisonment on both convictions of

aggravated assault, to be served concurrently.



       In this appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure, Defendant presents two issues: (1) The trial court erred by

overruling his objection to the admission into evidence of photographs of the

victim and (2) the trial court erred by denying his motion to suppress evidence

seized from his van during a warrantless search. We affirm the judgment of the

trial court.




                                      -2-
      On January 26, 1995, Martha Jo Hindman, an elderly lady who was

normally confined to a wheelchair, and Bobbie Jo Douglas, who was the

Defendant’s girlfriend, were sitting in Ms. Hindman’s home when the Defendant

entered and began beating Ms. Douglas. Ms. Hindman tried to intervene, but

Defendant threatened her with a knife, placing the knife in her face and telling her

to “shut up.” This scared Ms. Hindman and, in her words, she “backed off.” Ms.

Hindman went to another room to a telephone to call for help. The Defendant

saw her, jerked the phone out of her hand and threw it on the floor. Defendant

then folded her wheelchair up and threw it on the floor, grabbed Ms. Hindman

and slung her over the wheelchair, and she was unable to get up.



      Ms. Hindm an testified that after the Defendant came in the house, he

stated to Ms. Douglas, “What did you lie to me for?” He then grabbed Ms.

Douglas by the hair of her head and hit her several times in the face with his fist.

Ms. Douglas began to gather her belongings and the Defendant knocked her

down again. Ms. Douglas began bleeding and blood was on the floor, a footstool

and a blanket. In addition, the Defendant was kicking Ms. Douglas while she was

on the floor. As the Defendant was taking Ms. Douglas away from the home, he

told Ms. Hindman that if she told anyone what had happened, he would come

back and do to her what he had done to Ms. Douglas. After a considerable

period of time, Ms. Hindman finally called 911 and asked for a police officer to

come and help her get up. Being fearful of the Defendant and his threats, Ms.

Hindman told the officer that she had accidentally fallen out of the chair.

Subsequently, being concerned of Ms. Douglas’ well-being due to the extent of

her injuries, she called the police the next day and reported the incident.




                                        -3-
      The proof showed that the Defendant resided in Benton County. Officers

of the Benton County Sheriff’s Department went to the Defendant’s residence

and found both the Defendant and Ms. Douglas. Pictures were taken of Ms.

Douglas as she was found at the Defendant’s residence and as she appeared at

the hospital in Camden on January 27, 1995.



      To say that Ms. Douglas was a reluctant witness at the trial is to understate

the situation. She testified on direct exam ination when called by the State that

she could not remember the events which had occurred at Ms. Hindman’s home,

even though the record reflects that she apparently had a good memory of the

events during the preliminary hearing in General Sessions Court on February 9,

1995. During cross-examination, Ms. Douglas testified that she had spoken with

the Defendant over the phone and he said that if he ever got out of this he would

“never do it no more.” He apologized to her and she stated that she had written

to him and made phone calls to him since the incident had occurred.              In

summary, Ms. Douglas testified that “[Defendant] don’t need to be -- he’s spent

enough time in jail for what he has done . . . I think he has been punished enough

for what he has done.”



      Officers of the Benton County Sheriff’s Department searched the

Defendant’s van on the date of his arrest on January 27, 1995. Evidence of

items recovered from the van which incriminated the Defendant were introduced

at trial. In addition, the Defendant made a statement to the Sheriff of Benton

County that he [Defendant] wished he had just gone ahead and cut off the

victim’s head.




                                       -4-
      Prior to the trial, the Defendant filed a motion to suppress all evidence

seized during the warrantless search of his van by the Benton County Sheriff’s

Department. Following a hearing, the court denied the motion. The record on

appeal does not contain the transcript of the proceedings of the motion to

suppress evidence.



      It is the duty of the Defendant to prepare a record which includes the

proceedings relevant to an issue on appeal; otherwise, the doctrine of waiver

applies. T.R.A.P. 24(b); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App.

1987). W hen the record is incomplete, or does not contain the proceedings

relevant to an issue, this court must presume the trial court ruled correctly. State

v. Hoosier, 631 S.W .2d 474, 476 (Tenn. Crim. App. 1982); Herron v. State, 3

Tenn. Crim. App. 39, 456 S.W .2d 873, 876 (1970). Based upon the status of the

record on appeal, this court must presume that the trial court ruled correctly on

the motion to suppress evidence seized from the Defendant’s van. This issue is

without merit.



      The Defendant also filed, pre-trial, a motion in limine, requesting the trial

court to enter an order prohibiting the State from introducing into evidence the

photographs of the victim, Bobbie Jo Douglas. Defendant alleged in this motion,

and argues on appeal, that the prejudicial effect of the photographs far outweighs

the probative value. He asserts that the extent of the victim’s injuries could be

adequately proven through the testimony of the treating physician.



      As in the case of the motion to suppress evidence, the record does not

contain the transcripts of any proof presented to the trial court concerning the

                                        -5-
motion in limine. A pre-trial hearing was apparently held and an order was

entered denying the motion in limine.



          Even if this issue is not waived by failure of the Defendant to include in the

record proceedings in the trial court related to the motion in limine, we are able

to rule that the probative value of the photographs is not outweighed by any

prejudicial effect. From the record it is apparent that the photographs accurately

and clearly display the injuries to the victim which support proof of serious bodily

injury.    The victim’s treating physician testified during cross-examination by

Defendant’s counsel, that the photographs did not look worse than the victim’s

actual injuries and in fact, the photographs “looked exactly” like the injuries.



          The physician further testified that the victim had massive swelling of her

face with bruising, especially around her eyes, to the extent that she was unable

to open her eyes. In addition, the victim had multiple bruises on her rib cage and

swelling of both hands. He related that the victim did not have massive bleeding

and had no broken bones. He further testified that the victim’s eyes were so

swollen that she would have been unable to get up and move around on her own.

The photographs which were objected to by the Defendant show the victim’s face

with the eyes swollen shut, bruising on the face, and the swollen left hand. The

photographs are not particularly gruesome.



          Especially in light of the victim’s inability to remember events of the

aggravated assault, we conclude that the probative value of the photographs far

outweighs any prejudicial effect. See State v. Banks, 564 S.W .2d 947, 951




                                            -6-
(Tenn. 1978). The trial court did not err in overruling the Defendant’s objection

to the introduction of the photographs of the victim.



      Finding no error, we affirm the judgment of the trial court.




                                ____________________________________
                                THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WADE, Judge


___________________________________
JOHN H. PEAY, Judge




                                       -7-
