         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs June 19, 2001

             STATE OF TENNESSEE v. EDWIN MILTON SOCALL

               Direct Appeal from the Circuit Court for Montgomery County
                        No. 40309 Robert W. Wedemeyer, Judge


                    No. M1999-02727-CCA-R3-CD - Filed August 16, 2001


The Appellant, Edwin Milton Socall, was indicted by a Montgomery County Grand Jury for driving
under the influence (DUI), reckless driving, violation of the implied consent law, and driving on a
revoked license (DORL). Following a bench trial, Socall was found guilty of first offense DUI and
second offense DORL. He was sentenced to eleven months, twenty-nine days, with all but thirty
days suspended, for DUI, and eleven months, twenty-nine days, all suspended, for DORL, second
offense. At the bench trial, Socall was represented by retained counsel; however, no court reporter
was employed to transcribe the proceedings.

Following his conviction, Socall requested that he be found indigent for purposes of appeal and
requested appointed appellate counsel. The trial court granted his request and appointed the public
defender’s office. Because the proceedings below were not transcribed, a statement of evidence
pursuant to Tenn. R. App. P. 24(c) was prepared. On appeal, three issues are presented for our
review: (1) Whether “the failure to preserve evidence through the use of a court reporter or tape
recording” deprived Socall of an effective appeal; (2) whether the evidence was sufficient to support
the convictions of first offense DUI and second offense DORL; and (3) whether the trial court erred
by ordering Socall to serve thirty days in confinement. After review, we find issue (1) is without
merit and issue (3) is waived. Moreover, we hold the evidence is sufficient to support Socall’s
convictions for DUI and DORL, second offense. Accordingly, the judgment is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL , J. and L. T.
LAFFERTY, Sr.J., joined.

Russel A. Church, Assistant Public Defender, Clarksville, Tennessee, for the Appellant, Edwin
Milton Socall.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Patricia C.
Kussmann, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and
Arthur Bieber and Jamie Crenshaw, Assistant District Attorneys General, for the Appellee, State of
Tennessee.
                                             OPINION

                                       Factual Background

        Because a stenographic record of the evidence was not made at trial, a narrative statement
of the evidence was prepared pursuant to Tenn. R. App. P. 24(c). In conducting a sufficiency review
of the evidence, we are required to afford the State the strongest legitimate view of the evidence.
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).
Applying this standard, we have excerpted from the statement of evidence those facts in the light
most favorable to the State:

       The State called one witness, Officer Donnie Robbins of the Clarksville Police
       Department. Officer Robbins[’] testimony was substantially as follows:

               At approximately 3:19 a.m. he heard what he believed to be tires
               squealing on the roadway. He was near the intersection of Highway
               41 A and Tiny Town Road. When he looked to his right, he observed
               a vehicle spinning tires to the point that smoke was coming from the
               tires. He followed the vehicle a short distance on Highway 41 A
               where it turned into a parking lot of a bar called the Gold Nugget.
               The automobile stopped in the parking lot. When the officer pulled
               in behind the vehicle, the operator put the vehicle in park, turned it
               off and put the driver’s seat in a reclining position. The driver was
               the sole occupant of the vehicle, and the officer identified the
               Appellant as the driver.

               Upon approach to the automobile, the officer detected an odor of an
               alcoholic beverage through the open window. He asked the
               Appellant to get out of the vehicle and perform field sobriety tests.
               The Appellant told him he was familiar with field sobriety tests. He
               performed two tests, the one legged stand and the walk and turn test.
               The officer described the tests. In the officer’s opinion, the Appellant
               failed these tests. He was placed under arrest for driving under the
               influence of alcohol. At the Montgomery County Jail, the Appellant
               was advised of his rights under the implied consent statute. The
               officer testified the Appellant understood these rights, asserted them
               and refused to submit to a breath alcohol test.




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                             I. Failure to Request a Court Reporter

        The Appellant contends that he was deprived of an effective appeal due to trial counsel’s
failure to preserve evidence through the use of a court reporter at his bench trial. In Tennessee, a
defendant in a misdemeanor trial is not automatically provided with a court reporter at state expense.
Tenn. Code Ann. § 40-14-307(a) reads, in pertinent part, as follows:

       A designated reporter shall attend every stage of each criminal case before the court
       and shall record verbatim, by a method prescribed or approved by the executive
       secretary [now administrative director], all proceedings had in open court and such
       other proceedings as the judge may direct.

However, the "criminal case" to which the statute refers is narrowly, but specifically, defined in
Tenn. Code Ann. § 40-14-301(2) as "the trial of any criminal offense which is punishable by
confinement in the state penitentiary and any proceeding for the writ of habeas corpus wherein the
unlawful confinement is alleged to be in a state, county or municipal institution." Under the law of
this state, penitentiary confinement as punishment is the defining feature of a felony as distinguished
from a misdemeanor which, by definition, provides for punishment for less than one year. See Tenn.
Code Ann. § 39-11-110 (1989). In other words, a court reporter is not provided at state expense for
a misdemeanor offense unless a defendant is unable to afford one based upon indigency. State v.
Nail, 963 S.W.2d 761, 764 (Tenn. Crim. App. 1997). Thus, a verbatim transcript will be unavailable
on appeal unless the defendant employs a court reporter at trial. When a verbatim transcript is
unavailable, an Appellant may prepare a statement of the evidence. See Tenn. R. App. P. 24(c). The
State may file objections to the statement of the evidence, and the trial court shall decide what may
be properly included within the statement of evidence. Tenn. R. App. P. 24(c) & (e).

        In the presence case, the Appellant was charged with misdemeanors and no showing of
indigency was established prior to the time of his trial. The trial judge approved the Appellant’s
statement of evidence and the State made no objection to its accuracy. Despite the Appellant’s
contentions that a transcript of the evidence was necessary in order "to reflect [whether] objections
were made . . . [and] whether they give rise to any issue for appeal," we find that Tenn. R. App. P.
24(c) provides a sufficient substitute for the memorialization of a complete and accurate account of
the facts which give rise to those issues which form the basis of the appeal. Thus, this issue is
without merit.

                                  II. Sufficiency of the Evidence

         The Appellant contends that the evidence at trial was insufficient to support his convictions
for first offense DUI and for second offense DORL because a court reporter did not transcribe the
proceedings.

       A jury conviction removes the presumption of innocence with which a defendant is cloaked
and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of


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demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
Court to revisit questions of witness credibility on appeal, that function being within the province
of the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v.
Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish
that the evidence presented at trial was so deficient that no reasonable trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied,
513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e).

        In order to sustain a conviction for first offense driving under the influence, the State must
prove the following elements: (1) driving or being in physical control of a motor vehicle (2) upon
a public thoroughfare while (3) under the influence of an intoxicant or drug. Tenn. Code Ann. §
55-10-401; State v. Ray, 563 S.W.2d 454, 459 (Tenn. Crim. App.1988). According to the
statement of the evidence, Officer Robbins testified that after observing the Appellant’s erratic
driving, he followed him to the Gold Nugget, where he found the Appellant reclined in the driver’s
seat at which time he detected a strong odor of alcohol. Officer Robbins further testified that the
Appellant failed two field sobriety tests. Clearly, the testimony of Officer Robbins, taken in the light
most favorable to the State, is sufficient to support the Appellant’s conviction for DUI.

        Secondly, in order to sustain a conviction for second offense DORL, the State must prove
that the petitioner, for a second time, drove a motor vehicle on a public road in Tennessee while the
petitioner's privilege to drive was revoked. Tenn. Code Ann. § 55-50-504(a)(2).

        An examination of the statement of evidence reveals no reference to any fact relating to the
Appellant’s charge of DORL. Nonetheless, an exhibit is included in the record of the Appellant’s
Tennessee Department of Safety “drivers record” which clearly established that the Appellant’s
drivers license was suspended at the time of this offense. Also included in the record is a certified
copy of a conviction, introduced as an exhibit, establishing that the Appellant had previously been
convicted of driving on a revoked or suspended license on February 19, 1999. Moreover, as noted,
Officer Robbins testified that he saw the Appellant operating the vehicle on a public road. Based
upon this proof, we find the evidence sufficient to support the Appellant’s conviction for DORL,
second offense.

                                           III. Sentencing

        The Appellant argues that the trial court erred by ordering that he serve thirty days of his
eleven-month twenty-nine day sentence for DUI in confinement. It is well established that it is the
Appellant's duty to prepare an adequate record for appellate review. Tenn. R. App. P. 24(b). When
a party seeks appellate review, there is 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. State
v. Ballard, 855 S.W.2d 557, 560 (Tenn.1993). In the present case, the Appellant has failed to include


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within the record any evidence pertaining to sentencing. 1 In the absence of an adequate record, the
trial court’s ruling is presumed correct. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).

        Notwithstanding this waiver, we note that the statute pertaining to this offense, Tenn. Code
Ann.§ 55-10-403(a)(1), provides for a maximum punishment of eleven months and twenty-nine days
for the offense of DUI. While trial courts cannot deviate from the length of the DUI sentence, trial
courts do retain discretion in determining what portion of the eleven-month and twenty-nine day
sentence a defendant will serve in confinement. Troutman, 979 S.W.2d at 272. Accordingly, a trial
judge may designate a service percentage in a DUI case under Tenn. Code Ann. § 40-35-302(d) so
long as that percentage does not operate to reduce the mandatory minimum sentencing provisions
of the DUI statute. State v. Palmer, 902 S.W.2d 391, 394 (Tenn.1995). A DUI offender can be
sentenced to serve the entire eleven-month and twenty-nine day sentence imposed as the maximum
punishment for DUI. Id. Thus, the period of confinement imposed by the trial court in this case was
within the authorized sentencing range. Because the trial court’s ruling is presumed correct, this
issue is also without merit.


                                                  CONCLUSION

      Based upon the foregoing reasons, the judgments of conviction and sentences for first offense
DUI and DORL, second offense, are affirmed.




                                                                 ___________________________________
                                                                 DAVID G. HAYES, JUDGE




         1
           The statement of the evidence fails to make any reference to the trial court’s sentencing determ inations.
Notwithstanding, the uniform judgment of conviction docum ent w hich represents the court’s official and final
adjudication of the issues involved at sentencing is included in the record. The judgment form reflects that the Appellant
received a sentence of eleven months, twenty-nine days with all time suspended except for thirty days and was assessed
a fine of $250.00. Special conditions imposed include:

         (1) State probation; (2) Drivers license is revoked for one year; (3) To begin serving 11-13-99 at 6:00
         a.m. for 2 days only. To report again for consecutive Sundays only beginning 11-21-99 at 6:00 a.m.
         for the completion of sentence; (4) Count 2 is dismissed; (5) Defendant found in violation of implied
         consent and the defendant’s drivers license is revoked for an additional year; (6) To pay fines and
         costs at $25.00 p er month b eginning in 30 days.

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