        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                        MARCH SESSION , 1998             July 2, 1998

                                                  Cecil W. Crowson
STATE OF TENNESSEE,          )                  Appellate Court Clerk
                                 C.C.A. NO. 01C01-9706-CC-00221
                             )
      Appellee,              )
                             )
                             )   WARREN COUNTY
VS.                          )
                             )   HON. CHARLES D. HASTON
LAWR ENC E RAL PH, JR .,     )   JUDGE
                             )
      Appe llant.            )   (Burglar y of Autom obile, Th eft,
                             )   DUI, etc .)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF WARREN COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

AUBREY L. HARPER                 JOHN KNOX WALKUP
114 North College Street         Attorney General and Reporter
P.O. Box 588
McMinnville, TN 37111-0588       JANIS L. TURNER
                                 Assistant Attorney General
                                 425 5th Avenu e North
                                 Nashville, TN 37243

                                 WILLIAM LOCKE
                                 District Attorney General
                                 Professional Building
                                 McMinnville, TN 37110



OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART

DAVID H. WELLES, JUDGE
                                    OPINION
         The Defendant, Lawrence “Gomer” Ralph, Jr., appeals as of right pursuant

to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted on

a Wa rren Coun ty jury verdict of burglary of an automobile, theft over $1,000,

failure to yield to emergency lights, evading arrest, resisting arrest, violation of his

habitual traffic offender status, an d seven th-offens e DUI. 1 He was sentenced as

a multip le Ran ge II offe nder to four ye ars for b urglary of an automobile, seven

years for theft over $1,000, and four years for the habitual traffic offender

violation. For the m isdem eanor o ffenses, h e was s entenc ed to thirty days in the

county jail for failure to yield to emergency lights, nine months at 75% for evading

arrest, four months at 75% for resisting arrest, and three hu ndred d ays for D UI.

The sentences for theft over $1,000, failure to yield, and resisting arre st were

ordered to be served concurrent to each other but consecutive to the other

sentences, all of which were ordered to run consecutive to each other for an

effective se ntence of sixteen ye ars and eight mo nths.



         The Defe ndan t appe als his convictions and sentences and argues (1) that

he was brought before the prosp ective ju rors pr ior to jury select ion wh ile wearing

shackles and that this prejudiced him; (2) that the trial court erred by ordering

consecu tive sentences; and (3) that the trial court erred in classifying him as a

Range II offender. W e affirm in part and reverse in part the judgment of the trial

court.




1
  Tenn. Code Ann. §§ 39-14-402(a)(4); 39-14-103; 55-8-132; 39-16-603; 39-16-602; 55-50-504;
55-10-616; 55-10-401.

                                             -2-
       At the time of the offense, the Defendant was a resident of McMinnville,

Tennessee.      His fath er, Cu rly Ferre ll, ran a p ool ha ll on Ma in Stre et in

McMinnville. The victim in this case, A.P. Ikeard, began to visit the pool hall a

few days before the offense occurred on November 2, 1994. The victim testified

that he had b een re tired sin ce 19 84 an d that h e was learnin g to pla y pool.   On

the morn ing of N ovem ber 2, th e victim went to the po ol hall at approximately 7:00

a.m. The victim had seen the Defendant at the pool h all and knew that he was

Ferre ll’s son. That morning, the Defendant asked the victim to give him a ride to

a relative’s house to cut timber. The victim owned a 1984 Ford LTD that he

stated was in good condition and worth $2,500. The victim did not recall ever

taking the Defendant anywhere prior to the time in question. Fred Thomas rode

with them that morning.



       The victim took the Defendant to the relative’s house and stayed during the

day. Several other persons were present to cut the timber, but the victim did not

participate. The victim smelled alcohol on the Defendant but did not see him

drinking. The victim, the Defendant, and Thomas returned to the pool hall at

around 11:00 or 11:30 a.m. Later that day, Stanton M inton, the victim’s neighb or,

came to the pool hall and asked the victim to ride with him to look at some

dogwood trees. Th e victim left h is car behind the p ool hall and he h id his keys

under the driver’s seat. Minton suggested that he remove the distributor wire to

prevent anyon e from taking the veh icle. Th e victim took th e wire a nd pu t it in his

pocke t. They left at approximately 4:00 p.m. and returned at approximately 11:00

p.m. They had d riven a round the are a and to the to wn of V iola. Th e victim

denied that he ha d been drinking th at night.




                                          -3-
      The victim and Minton returned to the victim’s home because they agreed

to retrieve his c ar the ne xt mornin g. Som eone to ld him tha t his car had been

stolen, and he filed a com plaint at the Wa rren Co unty Jail. Th e victim we nt to

see his car at Woodlee’s Garage the next day and notice d seve ral bee r cans in

the vehicle. The car had sustained damage estim ated a t $1,50 0. The victim

never gave the Defenda nt permission to use his car.



      On the evening of Novem ber 2, 19 94, at app roximate ly 9:30 p.m ., Officer

Chuck Taylor of the McMinnville Police Department observed a blue 1984 F ord

LTD at the intersection of Locust Street and Spring S treet. When the officer

noticed that the car ran a stop sign and made a wide, sweeping turn onto Spring

Street, he beg an to follow the vehicle. The car was on the wrong side of the road

mom entarily, but the oc cupan t continue d to drive and stopped at two traffic lights.

The officer observed one person in the car. Th e vehic le pulled over at the pool

hall. The officer activated his emergency lights and the car sped away. The

officer pursued the vehicle at speeds exceeding ninety miles per hour. The car

was again driven on the wrong side of the road and without lights. When the car

reached the intersection of highways 127 and 8, the driver braked hard in an

attempt to make a turn. The driver lost control and the car slammed into a

guard rail. When the car stopped, the officer pulled alongside and recognized the

driver as th e Defe ndant.



      The Defendant jumped out of the car and ran along the guardrail, jumped

the guardrail, and ran into the bushes. Officer Todd Bess ran after the Defendant

and shouted for him to stop. The Defendant eventually fell down and Officer

Bess caught him. The Defendant struggled when Bess tried to handcuff him. An

                                         -4-
off-duty officer, Tony Taylor, who was riding with Bess, administered pepper gas

spray to subdue the Defendant. He was handcu ffed and brought back to the

patrol cars. The Defendant smelled of alcohol, appeared unsteady on his fee t,

and would not perform any field sobriety tests. Officers found six empty beer

cans in the car. The Defendant refused to take an intoximeter test at the Warren

Cou nty Jail.



       The Defendant was indicted for burglary of an automobile, theft over

$1,000, failure to yield to emergency lights, evading arrest, resisting arrest,

violation of his ha bitual tra ffic offender status, DUI, and driving on a revoked

license. The cha rge of driving on a revoked license was dismissed and the

Defendant was convicted by a jury of the rema ining o ffense s. He n ow ap peals

his convictions and sentences.



                  I. VIOLATION OF RIGHT TO A FAIR TRIAL

       As his first issue, the Defendant argues that he was brought in front of the

jury venire prior to jury selection wearing shackles, preventing him from receiving

a fair trial. The record of the proceedings indicates nothing regarding the

Defendant wearing shackles. No objections by the Defen dant are found and the

record contains no other evidence at all relating to the Defendant’s claim. The

trial transcript re veals no evidenc e of shac kling, nor do we have before us the

Defe ndan t’s Motion for Ne w Trial. Failure to make a contemporaneous objection

waives consideration by this court of the issue on app eal. See Tenn. R. App. P.

36(a); State v. Killebrew, 760 S.W .2d 228 , 235 (T enn. C rim. App.), perm to

appeal denied (Tenn. 1988). Without a record below which contains evidence




                                        -5-
that an issue exists, we have nothing to review on appeal. Therefore, this issue

has been waived.



                            II. IMPROPER SENTENCING

       Next, the Defendant argues that the trial court erred in sentencing him as

a multiple offender and ordering that the sentences be served consecutively. The

State correc tly points out tha t the on ly piece s of evid ence in the record regarding

sentencing are the judgment of the trial court and the notices submitted by the

State. The transcript of the sentencing hearing is not in the record before us.



       It is the duty of an appellant to prepare an adequate record to allow a

meaningful review on appea l. Tenn. R . App. P. 2 4(b); State v. Ballard, 855

S.W.2d 557, 56 0-61 (T enn. 19 93); State v. Robe rts, 755 S.W.2d 833, 836 (Tenn.

Crim. App. 19 88); State v. Bunch, 646 S.W.2d 158, 160 (Tenn.1983). Given the

absence of the transcript of the se ntencing he aring from the record, we must

presume the trial court’s findings with respect to the trans cript are co rrect. State

v. Richardson, 875 S.W .2d 671 , 674 (T enn. C rim. App . 1993); State v. Boling,

840 S.W.2d 944, 951 (Tenn. Crim. App. 1992). Because we ca nnot a dequ ately

review the sentencing procedure, this issue has been waived.



                                 III. PLAIN ERROR

       This Court is authorized, in its discretion, to cons ider iss ues n ot prop erly

presented for review “(1) to prevent needless litigation, (2) to prevent injury to the

interests of the public, and (3) to prevent prejudice to the judicial process.”

Tenn . R. App . P. 13(b).




                                          -6-
       Although the Defendant cannot prevail on the two issues he brought before

this Court, it has become eviden t that pla in error exists in the rec ord. P lain error

may be addressed by an appellate court even when not raised in a motion for

new trial. State v. Ogle , 666 S.W.2d 58 (Tenn. 1984). The Tennessee Rules of

Criminal Procedure provide, in pertinent part, the following:

       An error which has affected the substantial rights of an accused may
       be noticed at any time, even though not raised in the mo tion for a
       new trial or assigned as e rror on appeal, in the discretion of the
       appellate court wh ere nec essary to do sub stantial justice .

Tenn. R . Crim. P. 52(b).



       A substantial right is one of fundamental proportions which is constitutional

in nature. See State v. Adkisson, 899 S.W .2d 626, 639 (Tenn. Crim . App. 1994 ).

An error may be recognized as “plain” if it seriously affects the fairness of a

judicial procee ding. Id. We believe it is nece ssary to addre ss an error in this

case in order to do substantial justice. Because we believe prosecution of the

Defendant for burglary and theft of the same automobile offends notions of due

process in this particular case, we are comp elled to rev erse th e Def enda nt’s

conviction for burglar y.



       In 1991 our supreme court held that due process precludes conviction for

kidnapping where the detention of the victim occurs as merely incidental to the

commission of anothe r felony suc h as rob bery or rap e. State v. A nthony, 817

S.W.2d 299, 300 (T enn. 19 91). In support of its holding, the Anthony court noted

that “every robbery, by definition, involves som e dete ntion a gains t the will of the

victim.” Id. at 306. The cou rt announced that the appropriate test to determine

when multiple convictions offend due process in a kidnapping and robbery case



                                          -7-
     is “whether the confinement, movement, or detention is essen tially incidenta l to

     the accompanying fe lony and is not, there fore, sufficien t to suppo rt a sepa rate

     conviction for kidnap ping, or w hether it is sig nificant en ough, in a nd of itself, to

     warrant independent prosecution and is, therefore, sufficient to support such a

     conviction .” Id.; see State v. Dixon, 957 S.W .2d 532 , 534 (T enn. 19 97); State v.

     Coleman, 865 S.W.2d 455, 457 (T enn. 19 93); State v. Binion, 947 S.W.2d 867,

     872-73 (Tenn . Crim. A pp. 199 6).



             In Anthony, the court indicated that a due process review nece ssarily

     includes an an alysis o f the crim inal statutes invo lved and legislative inte nt. “In

     examining these general guidelines, it must be remembered that individual cases

     are sometimes dependent upon the wording of the particular statutes being

     construed, and upon the clarity of . . . legislative intent.” Anthony, 817 S.W.2d at

     306. It would be difficult, although not impossible, to steal a car without in some

     manner entering at least som e portion of the ca r.2 In the case sub judice, we do

     not believe that the legislature intended that stealing this car would constitute two

     crimes— burglary and theft.



             This Court has applied the Anthony analysis to a case involving burglary

     of an auto mobile and attem pted the ft. State v. R oberts, 943 S.W.2d 403, 406-07

     (Tenn. Crim. App. 1996). In Robe rts we noted that not every attempted theft of

     a vehicle includes, by definition, a burglary of that vehicle; and the refore

     Anthony is “not strictly applicable” to a defendant so charged.                               Id. at 406.

     Howeve r, we concluded in Roberts that “the due process concerns underlying the


     2
      In making this assertion, we note the broa d legislative definition of “enter” as including “[i]ntrusion
of   any part of the body” and “[i]ntrusion of any object in physical contact with the body or any object
     controlled by remote control, electronic or otherwise.” Tenn. Code Ann . § 39-14-402(b)(1)-(2).

                                                         -8-
holding of Anthony mand ate[d] a similar result.” Id. Robe rts is controlling upon

this case, notwithstanding the fact that here the Court considers convictions of

burglary a nd theft, rath er than a ttempte d theft.



       In Robe rts, we stated,

       If, for example, the State has alleged and shown that the defendant
       entered each vehicle with the intent to commit some felony, theft, or
       assa ult other than to steal the vehicle, such as to steal the radio or
       other articles from within, and then atte mpted to steal the vehicle,
       then those alleged facts would likely require a different result from
       the one we reach here. However, here the acts of entry into the
       vehicles as alleged an d proven by the State are merely an essential
       and incidental step in the attempted theft of the vehicles themselves.
       The act of breaking into the vehicles is not significant enough, in and
       of itself, to warrant indepen dent prosec ution where the defen dant is
       also convicted of attempted theft. . . . [U]nder the facts . . .
       convictions for both bu rglary and attemp ted theft violate the
       principles of Anthony.

Id. at 407.



       In the case at bar, the Defendant’s entry into the victim’s vehicle was

necessary to achieve the theft of the car. There is no evidence of a separate

intent to steal any items from inside the vehicle, nor is there evidence that some

other felony was intended or that items were in fact taken from the vehicle.

Under these facts, th e burg lary of th e auto mob ile, witho ut mo re, was esse ntially

incidental to the theft and “part and parcel of that offense .” See Anthony, 817

S.W.2d at 307. Therefore, we conclude that the Defendant’s right to due process

of law as expressed in Anthony and applied in Robe rts require revers al of his

conviction for burglar y.




                                          -9-
      The Defenda nt’s conviction for burglary is reverse d and vacate d. In all

other respects the judgment is affirmed. This case is remanded to the trial court

for the purpose of entering a judgment consistent with this opinion.



                                ________________________________
                                DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                      -10-
