        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 14, 2013

                  STATE OF TENNESSEE v. SHIRLEY MASON

                   Appeal from the Circuit Court for Bedford County
                            No. 17322    Lee Russell, Judge




                 No. M2012-01891-CCA-R3-CD - Filed August 14, 2013


The defendant, Shirley Mason, appeals her Bedford County Circuit Court jury conviction of
the sale of less than .5 grams of a substance containing cocaine base, claiming that racial
discrimination tainted the jury selection process in her case and that the trial court erred by
refusing to strike the State’s notice seeking enhanced punishment. Discerning no error, we
affirm.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and R OBERT W. W EDEMEYER, JJ., joined.

Alicia Napier, Shelbyville, Tennessee, for the appellant, Shirley Mason.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Charles Crawford, District Attorney General; and Richard A. Cawley, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

               The defendant did not file a complete transcript of her trial as part of the record
on appeal, but we glean the substance of her offense from that portion of the transcript
included in the appellate record. At the defendant’s trial, David Bell testified that he had
known the defendant and her brother, James Mason, for more than 30 years. On May 4,
2011, the siblings came to his house to try to sell him crack cocaine. Mr. Bell said that his
friend John Harris, who lived with him at the time, asked Mr. Bell to obtain crack cocaine
for him. Mr. Bell said that he telephoned Mr. Mason, who had telephoned Mr. Bell on a
previous occasion and asked Mr. Bell to help him “get rid of” some crack cocaine. Mr. Bell
testified that after the defendant and her brother arrived at his residence, he got into the car
with them. He said that he gave Mr. Mason $100, and the defendant, who was in the driver’s
seat, gave him crack cocaine. Mr. Mason then gave Mr. Bell another bag containing “a
handful” of crack cocaine “crumbs” as a reward for bringing his business to Mr. Mason.
After obtaining the cocaine, Mr. Bell went inside his house and gave it to Mr. Harris.

              Mr. Bell testified that he did not know that Mr. Harris was working in
conjunction with the drug task force. Mr. Bell identified himself, the defendant, and her
brother from a video recording of the drug transaction.

             During cross-examination, Mr. Bell acknowledged that he had been charged
for his role in the drug transaction and stated that he hoped “to be getting some
consideration” in exchange for his testimony.

               Shelbyville Police Department and 17th Judicial District Drug Task Force
Officer Shane George testified that on May 4, 2011, he followed Mr. Mason’s car as it
traveled from Mr. Mason’s residence to Mr. Bell’s residence. He then followed the car as
it left Mr. Bell’s residence and eventually effectuated a stop of the vehicle. According to
Officer George, Mr. Mason was driving the car, and the defendant was a passenger. Officer
George discovered cash in Mr. Mason’s pocket during a search of his person and identified
in the cash the $100 provided to the confidential informant for the purchase of crack cocaine.

              Officer George testified that he provided the defendant and Mr. Mason with
Miranda warnings and that the defendant agreed to be interviewed. After he had separated
the defendant from Mr. Mason, the defendant told Officer George that she had traveled with
Mr. Mason to Mr. Bell’s residence for the purpose of selling crack cocaine. She admitted
that she sold $100 worth of crack cocaine to Mr. Bell and $30 worth of crack cocaine to
Alfonzo Snipes while at Mr. Bell’s residence. The defendant told Officer George that she
agreed to act as a middle man in the transaction in exchange for crack cocaine for her own
personal use.

               The jury convicted the defendant as charged of the sale and delivery of less
than .5 grams of cocaine, and the trial court merged the jury verdicts into a single conviction,
for which it imposed a Range II sentence of nine years’ incarceration. Following the denial
of her timely but unsuccessful motion for new trial, the defendant filed a timely notice of
appeal.

              In this appeal, the defendant contends that the State exercised a peremptory
challenge to excuse a potential juror “who was fairly light skinned but could possibly have
been of the same race as” the defendant in the absence of “any legitimate purpose.” She says

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that because that juror did not provide any response during voir dire that would have
occasioned his being excused, “the purpose for excusing him was racially motivated.” The
defendant also asserts that the trial court erred by denying her motion to strike the State’s
notice seeking enhanced punishment. Specifically, she contends that the notice should have
been stricken because it was filed less than 10 days before the scheduled trial date. She
admits, however, that the trial was continued for other reasons. The State contends that the
defendant has waived our consideration of both these issues by failing to file an adequate
record on appeal.

                That portion of the transcript made part of the appellate record does not include
the trial court’s ruling on the defendant’s motion to strike the enhanced sentencing notice,
the trial court’s order continuing the defendant’s trial from March to May 2012,1 the voir dire
of the jury, or the sentencing hearing. The appellant bears the burden of preparing an
adequate record on appeal. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). If the
appellant fails to file an adequate record, this court must presume the trial court’s rulings
were correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993).
Without the transcripts outlined above, we cannot evaluate either the defendant’s claim of
racial discrimination during the jury selection process or the trial court’s refusal to strike the
enhanced sentencing notice. As such, we must presume that the trial court ruled correctly
with regard to both issues.

               Additionally, the defendant apparently waived her claim regarding jury
selection by failing to contemporaneously challenge the State’s use of its peremptory
challenge. See State v. Bell, 759 S.W.2d 651, 654 (Tenn. 1988) (holding that “objections to
the use of peremptory challenges should be contemporaneous, while the circumstances of the
occurrence are fresh in the minds of all involved, so as to enable the trial judge to make an
appropriate ruling”); see also Tenn. R. App. P. 36(b) (“Nothing in this rule shall be construed
as requiring relief be granted to a party responsible for an error or who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an
error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver
applies when the defendant fails to make a contemporaneous objection); State v. Jenkins, 733
S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn.
Crim. App. 1987). In any event, the defendant does not mention in her brief any
contemporaneous challenge to the jury or the ruling of the trial court on any such objection.


        1
          We note that the continuance of the defendant’s trial for nearly two months likely cured any issue
arising from the late-filing of the enhanced sentencing notice. See Tenn. R. Crim. P. 12.3, Advisory Comm’n
Cmts (“[T]he [S]tate may provide notice in less than ten (10) days but the defendant is entitled to a
continuance to rechart a course of action. If the defendant does not request a continuance, the written notice
shall be valid.”).

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She also waived our consideration of this issue by failing to raise the issue in her motion for
new trial. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for
review shall be predicated upon error in . . . [any] ground upon which a new trial is sought,
unless the same was specifically stated in a motion for a new trial; otherwise such issues will
be treated as waived.”); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding
that a defendant relinquishes the right to argue on appeal any issues that should have been
presented in a motion for new trial but were not raised in the motion); State v. Dodson, 780
S.W.2d 778, 780 (Tenn. Crim. App. 1989).

              Accordingly, the judgment of the trial court is affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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