         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   October 7, 2008 Session

                   STATE OF TENNESSEE v. CARMI BINKINS

                  Direct Appeal from the Criminal Court for Shelby County
                        No. 06-03659 James M. Lammey, Jr., Judge



                   No. W2007-02403-CCA-R3-CD - Filed January 30, 2009


Following a jury trial, Defendant, Carmi Binkins, was convicted of two counts of attempted second
degree murder, a Class B felony; two counts of especially aggravated kidnapping, a Class A felony;
and one count of aggravated assault, a Class C felony. The trial court merged the aggravated assault
conviction with one of the attempted murder convictions and sentenced Defendant as a Range I,
standard offender to twelve years for each of the attempted second degree murder convictions and
to twenty-four years at 100 percent for each of the especially aggravated kidnapping convictions.
The court ordered that the especially aggravated kidnapping convictions be served concurrently with
the attempted murder convictions but consecutively to each other, for an effective sentence of forty-
eight years at 100 percent in the Department of Correction. On appeal, Defendant argues that (1)
his right to confrontation was violated when a crying victim was allowed to display his injuries to
the jury despite being found incompetent to testify; and (2) the trial court provided erroneous
instructions on the elements of especially aggravated kidnapping when answering a question from
the jury. The State argues that the defendant has waived the issues by failing to include an adequate
record on appeal and that the trial court’s jury instructions were proper. After a thorough review of
the record, we affirm Defendant’s convictions but remand to the trial court for entry of corrected
judgment forms to reflect that count four is to be served concurrently with count two and that
Defendant’s especially aggravated kidnapping sentences are to be served at 100 percent release
eligibility.

                 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the
        Criminal Court Affirmed and Remanded for Entry of Corrected Judgments

THOMAS T. WOODALL , J., delivered the opinion of the court, in which DAVID H. WELLES and J.C.
MCLIN , JJ., joined.

Javier Michael Bailey, Memphis, Tennessee, for the appellant, Carmi Binkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Muriel Malone, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

         On April 25, 2006, the Shelby County Grand Jury returned a five-count indictment against
Defendant, charging him in count one with the attempted first degree murder of Jeremy Townsend,
in count two with the attempted first degree murder of Darrel Crawford, in count three with the
especially aggravated kidnapping of Townsend, in count four with the especially aggravated
kidnapping of Crawford, and in count five with the especially aggravated robbery of Townsend. The
trial transcript is not included in the record on appeal. The presentence report, however, contains
the following account of the crimes as stated in the warrant for Defendant’s arrest:

               On Sunday, November 20, 2005, at approximately 4:00 A.M., victims Jeremy
       Townsend and Darrel Crawford and witness Mario Lott were sitting in a car along
       with defendant Carmi Binkins in the 6111 Apartments in Hickory Hill. Defendant
       Binkins instructed witness Lott to go upstairs. Witness Lott left the vehicle and went
       upstairs at which time he heard several shots fired. Witness Lott returned to the car
       and observed victims laying across the front seat and blood on the front seat.
       Witness Lott observed a silver gun in defendant’s right hand. Witness then ran away.
       Defendant Binkins got into the driver’s seat, pushed victim Townsend into the
       passenger seat on top of victim Crawford, and drove to a gas station in DeSoto
       County, Mississippi. Defendant Binkins got out of the car and left it running. At this
       time, victim Townsend moved in the driver’s seat and drove to another gas station
       at Highway 61 and Star Landing to get help. Victim Crawford and victim Townsend
       were taken to the [Regional Medical Center]. Victim Crawford is unable to
       communicate and is still listed in extremely critical condition at the [Regional
       Medical Center]. Victim Townsend is in stable condition and was able to give an
       oral statement as to what happened. Victim Townsend pointed out Carmi Binkins
       as the person that shot him through photo lineup. Witness Mario Lott was brought
       to 201 Poplar where he gave a type written statement and identified Carmi Binkins
       as the shooter through photo lineup.

                          I. Alleged Violation of Confrontation Clause

         Defendant contends that his Sixth Amendment right to confrontation was violated when the
trial court allowed one of the victims “to stand crying before the jury, and to show his injuries to the
jury, notwithstanding the witness’s inability to take the oath and to provide competent testimony.”
Defendant asserts that the State either knew or should have known, at the time it called him to the
stand, that victim Crawford was physically and mentally incapable of taking the oath and providing
competent testimony. The State responds by arguing that Defendant has waived this issue by his
failure to include the trial transcript in the record on appeal. We agree with the State.

         It is well settled that when a party seeks appellate review, it 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. See State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993) (holding
failure to include transcript precludes appellate review); State v. Bunch, 646 S.W.2d 158, 160 (Tenn.
1983); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (holding trial court’s ruling

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presumed correct in the absence of an adequate record on appeal). Where the record is incomplete
and does not contain a transcript of the proceedings relevant to an issue presented for review, or
portions of the record upon which the party relies, an appellate court is precluded from considering
the issue. See State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Here, we have
nothing but the assertions of counsel as to what transpired in the trial court, whether Defendant
objected, and the curative steps taken by the trial court. Because the necessary relevant material is
not included in the record, we decline to consider the merits of this issue. See Tenn. R. App. P.
24(b). Accordingly, the issue is waived.

                         II. Trial Court’s Response to Jury’s Question

        Defendant also contends that the trial court committed reversible error in its response to the
jury foreperson’s question about kidnapping. The record includes the following partially obscured
handwritten question: “For counts 3 & 4 Can it be consider[ed] kidnapping if defend[ant] thought
they were de[ad?] [W]ill the defendan[t] have to have known if they were alive[?]” The handwritten
reply reads as follows: “As to the counts 3 & 4. It is not an element of the charged offense or the
included offenses that the defendant knew or did not know whether a particular alleged victim was
alive, dead, conscious or unconscious at the time of the offense.”

         Asserting that kidnapping requires that a defendant knowingly deprive another of his or her
liberty, Defendant argues that the trial court’s response erroneously indicated that a dead man may
be kidnapped, thereby misleading the jury and depriving him of his right to a correct and complete
charge on the law. The State argues that Defendant has waived the issue by his apparent failure to
raise a contemporaneous objection at trial, by his failure to include an adequate record for review,
and by his failure to include any citations to the record. The State further argues that, even if not
waived, the trial court’s response to the jury was proper, since the relevant statutes require only that
a defendant have knowingly removed or confined another, not knowingly interfered with another’s
liberty.

        We, initially, agree with the State that Defendant has waived this issue by his failure to
include an adequate record for review. Without such, we have no way of knowing whether
Defendant objected or acquiesced to the trial court’s response to the jury. Appellate relief is
generally not available when a party has “failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of an error.” Tenn. R. App. P. 36(a); see State v. Killebrew,
760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (holding that waiver applies when the defendant fails
to make a contemporaneous objection).

         We further agree with the State that, regardless of waiver, the trial court’s response to the
question was not improper. In criminal cases, a defendant has a right to a correct and complete
charge of the law. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). “An instruction should be
considered prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly
submit the legal issues or misleads the jury as to the applicable law.” State v. Faulkner, 154 S.W.3d
48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)). While a transcript of
the trial court’s actual instructions to the jury are not included in the record on appeal, we do have
the typewritten jury charge from which the trial court, presumably, read when charging the jury on

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the law. In its original charge to the jury, the trial court apparently issued the appropriate pattern
jury instructions on the elements of especially aggravated kidnapping, instructing the jury that to find
the defendant guilty of the offense, the State must have proven beyond a reasonable doubt “that the
defendant knowingly removed or confined another unlawfully so as to interfere substantially with
the other’s liberty; and that the confinement or removal was accomplished with a deadly
weapon . . . .” See T. P. I.–Crim. § 8.03 (8th ed. 2004); see also Tenn. Code Ann. § 39-13-305(a)(1)
(2006).

         The trial court’s response to the jury’s question did not result in a misstatement of the
elements of the offense. As the State points out, the kidnapping statutes require only that a
defendant have knowingly confined or removed a victim “so as to interfere” with the victim’s
liberty, not that the defendant have knowingly interfered with the victim’s liberty. Had the victims
been discovered dead in the car, Defendant could have argued at trial that they were already dead
at the time he confined and removed them and that he could not, therefore, be guilty of kidnapping.
See, e.g., State v. Rogers, 188 S.W.3d 593, 616-17 (Tenn. 2006) (concluding that State presented
sufficient proof to show that victim was alive when defendant transported her in his vehicle and,
thus, that the evidence was sufficient to sustain defendant’s convictions for especially aggravated
kidnapping and felony murder). Because both victims in this case were alive, Defendant’s knowing
confinement of them in the vehicle clearly interfered with their liberty.

                                          CONCLUSION

        We affirm the judgments of the trial court but remand for entry of corrected judgment forms
to reflect that the sentence in count four is to be served concurrently with the sentence in count two
and that the sentences for the especially aggravated kidnapping convictions are to be served at 100
percent.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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