             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                           March 28, 2006 Session

                     STATE OF TENNESSEE v. KENNETH RAMSEY

                        Appeal from the Criminal Court for Hamilton County
                               No. 252194 Douglas A. Meyer, Judge



                       No. E2005-00854-CCA-R3-CD Filed September 20, 2006


After a bench trial in Hamilton County, the appellant, Kenneth Ramsey, was convicted of speeding,
simple assault and resisting arrest.1 As a result, the trial court sentenced the appellant to thirty days
for speeding, six months for resisting arrest and eleven months and twenty-nine days for assault, with
the sentences to run concurrently. The trial court suspended the effective eleven month, twenty-nine
day sentence and placed the appellant on unsupervised probation. The appellant filed a timely notice
of appeal. On appeal, the appellant presents the following issues: (1) whether the trial court erred
by failing to allow the appellant to call a witness to testify on his behalf; (2) whether the trial court
erred by failing to present a copy of the indictment to the appellant; (3) whether the trial court erred
by denying a continuance because the appellant was not provided documents as required by law in
a timely manner; (4) whether the trial court failed to provide equal access to the court by denying a
continuance; and (5) whether the evidence was sufficient to support the convictions. Because the
judgment forms do not properly reflect that the appellant was found guilty after a bench trial, we
remand the matter for entry of corrected judgment forms. In all other respects, we affirm the
judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

JERRY L. SMITH , J., delivered the opinion of the court, in which ALAN E. GLENN and J. C. MCLIN ,
JJ., joined.

Kenneth Ramsey, Pro Se, Chattanooga, Tennessee.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
Bill Cox, District Attorney General; and Lila Statom, Assistant District Attorneys General, for the
appellee, State of Tennessee.



         1
            The judgment forms incorrectly reflect that the appellant pled guilty to the offenses as charged. On remand,
the trial court should enter corrected judgment forms to properly reflect that the appellant was found guilty after a bench
trial.
                                             OPINION

        According to Officer Tyrone Williams of the Chattanooga Police Department, on October
4, 2004, he was on patrol near the 1000 block of North Moore Road across from Brainerd High
School when he “noticed [the appellant’s] green Ford pickup truck traveling at a high rate of speed.”
After noticing the vehicle, Officer Williams clocked the appellant with his radar unit at fifty-one
miles-per-hour in a thirty-five mile-per-hour zone. At that point, Officer Williams pulled onto the
roadway, activated his blue lights and began to pursue the appellant. The appellant “ducked” off
onto a side road. Another officer, Tommy Meeks, was traveling southbound on North Moore Road
and was able to pull in behind the appellant when he turned onto Drummond Street.

        When the appellant turned onto Drummond, “he was in the right lane” on North Moore Road
and had to “cut across the other left lane that was on the northbound side and two southbound lanes
to get to Drummond, and cut another vehicle off in the process.” Officer Williams did a U-turn in
order to follow the appellant onto Drummond. When both officers got behind the appellant, they
both had their blue lights activated. The appellant eventually pulled over and stepped out of his
truck. Officer Williams explained:

       From that point, I began to state to [the appellant] initially why he was being stopped,
       and he really didn’t seem to comprehend that, and he really didn’t think that he was
       the person that was being stopped. He didn’t understand that he had been speeding
       and he just was really, just irrational and just sort of combative with us, because he
       felt his rights had been violated in some way . . . .

       Basically I was trying to get some information from him at that point after stating to
       him why I had stopped him. After receiving his license from him, I was going to
       proceed to get more information, go ahead and do a driver’s license check to make
       sure the status was valid.

       And also, again, he had that passenger in the vehicle [Michael Anderson], so my
       attention was going to be drawn towards him also. I left Officer Meeks with [the
       appellant] as I went around to speak with the passenger and try to obtain more
       information about the passenger at that time.

Officer Williams confirmed that the passenger, Michael Anderson, was later arrested on an
outstanding warrant for domestic assault.

       Officer Williams described what happened next as follows:

       I was standing at the back of the pickup truck actually walking back towards that
       direction, so I didn’t actually see the exchange or the contact that was made with


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       Officer Meeks, but Officer Meeks immediately began to attempt to take him [the
       appellant] into custody and that’s where the struggle ensued with [the appellant], or
       the resisting . . . .

       Basically at that time Officer Meeks told him [the appellant] to place his hands on
       the vehicle, that he was going to be placed under arrest. At that time he [the
       appellant] . . . didn’t want to put his hands behind his back, so we actually had to
       physically take him to the ground and handcuff him.


        Officer Meeks testified that he drove his patrol car behind the appellant’s pickup truck and
turned on his blue lights, but the appellant did not stop until he drove about a mile. Once the
appellant stopped the truck, the appellant stepped out of his vehicle. Officer Meeks exited his patrol
car at that time and “started giving [the appellant] verbal commands to stay where he was . . . .”
However, the appellant continued to walk toward Officer Meeks and Officer Williams. Officer
Meeks described the appellant as “very confrontational” and “very belligerent.” Officer Meeks
stated that after Officer Williams spoke with the appellant, Officer Williams walked around the
vehicle to speak with the passenger. At that time, Officer Meeks “turned to position [himself] where
I could see both of them [the appellant and the passenger], which at that point, [the appellant] . . .
slammed the car door into my hand, breaking my finger.” The appellant commented that he “did not
want [Officer Meeks] looking in his vehicle at that time,” just prior to slamming the door on Officer
Meeks’s finger.

        Officer Meeks then ordered the appellant to put his hands up on the car and informed him
that he was under arrest for assault. Officer Meeks stated that the appellant became “very violent”
and that he and Officer Williams were forced to wrestle the appellant to the ground in order to
handcuff him. The appellant refused to let Officer Meeks “pat him down” and kept “pushing” the
officers.

        The appellant took the stand in his own defense.2 He claimed that he was traveling north on
North Moore Road when his passenger stated he “wanted to go over onto Tunnel Boulevard, and at
that point I thought, well, we can see if we can take a shortcut rather than going all the way over to
Shallowford.” The appellant stated that he moved over “into the left lane, went over onto
Drummond, . . . came to a stop sign, stopped, made my left-hand turn, and at that point the police
cars came up behind me with their blue lights and I stopped.” According to the appellant, he “sat
in his vehicle with his hands on the wheel” and did not exit the vehicle until ordered twice to do so
by Officer Williams. The appellant claimed that he asked Officer Williams if he was under arrest
and the officer replied, “not at this time,” however the appellant was told that he could not leave.




       2
           The appellant represented himself at trial.

                                                         -3-
Next, the appellant claimed:

        Officer Meeks was standing away from the door watching me and whatever was
        happening. He asked me that I shut off the vehicle, which was running, and I turned
        it off without getting into the vehicle, turned off the lights, rolled up the window,
        pushed the door lock down, and as I was trying to close the door, Officer Meeks
        reaches over, over me, puts his hand in the door and he got hurt apparently.

        At that point Officer Meeks tackled me without saying anything, and I tried to keep
        from falling on the ground. And to keep from falling on the ground, I grabbed ahold
        of the back of the pickup truck, and it was sometime after that that they asked me to
        get down on the ground, so therefore, I did. That’s when they handcuffed me. Told
        me they were charging me with assault of a police officer.

        On cross-examination, the appellant claimed that he was not speeding and denied becoming
belligerent or disobeying the orders of the officers.

        The appellant told the trial court that he was supposed to have a witness, Michael Anderson,
in court and that there was a subpoena issued for him to appear. The appellant claimed that Mr.
Anderson would testify that he did not see the appellant assault the officer.

        At the conclusion of the trial, the trial court found the appellant guilty of speeding, assault
and resisting arrest. The trial judge commented:

        All right. Now, I find that you were speeding. I believe the officer that you were
        doing 51 in a 35-mile [per hour] zone. Also find that you did attempt to elude them
        by turning on several side streets. I do not buy your explanation that you were taking
        a shortcut, so I find that you [were] doing that [eluding the police]. So I find you
        guilty of speeding, also of resisting arrest and assault on the officer.


The trial court then imposed a thirty-day sentence for speeding, a six-month sentence for resisting
arrest, and an eleven-month and twenty-nine day sentence for assault, all to be served concurrently.
The trial court suspended the sentences and placed the appellant on unsupervised probation.

        The appellant filed a timely notice of appeal.

                                                Analysis

         On appeal, the appellant argues that: (1) the trial court erred by failing to allow the appellant
to call a witness to testify on his behalf; (2) the trial court erred by failing to present a copy of the
indictment to the appellant; (3) the trial court erred by denying a continuance because the appellant
was not provided documents as required by law in a timely manner; (4) the trial court failed to


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provide equal access to the court by denying a continuance; and (5) the evidence was insufficient to
support the convictions.

        As a preliminary matter, we note that the record fails to include a motion for new trial and
an order overruling the motion for new trial. The State argues that the appellant has waived all
issues with the exception of sufficiency of the evidence for failure to include them in a motion for
new trial.

         Tennessee Rule of Appellate Procedure 3(e) states in pertinent part that “in all cases tried by
a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of
evidence . . . unless the same was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived (emphasis added).” The motion for a new trial is not necessary when
the trial was had before a judge without intervention of a jury, as is the case here. United States v.
DeCoster, 487 F.2d 1197 (1973); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975); State v. Dean
Byard, No. M2000-01410-CCA-R3-CD, 2001 WL 1502658 (Tenn. Crim. App., at Nashville, Nov.
27, 2001). Therefore, we will address the merits of the issues by the appellant on appeal.

                             Failure to Allow Appellant to Call Witness

        The appellant first argues that the trial court erred by not allowing the appellant to call a
witness. Specifically, the appellant alleges that the trial court refused to allow him to call a witness
that had been duly subpoenaed to testify.

        According to the transcript, the trial court gave the appellant the opportunity to call Michael
Anderson, the witness in question. The following exchange occurred between the appellant and the
trial court:

       THE APPELLANT: I have, I was supposed to have a witness here. I don’t know
       whether he’s here or not.
       THE COURT: Who is your witness?
       THE APPELLANT: Michael Anderson.
       THE COURT: Michael Anderson here? Michael Anderson?
       THE APPELLANT: I issued a subpoena for him.
       THE COURT: What would he testify to?
       THE APPELLANT: I believe he’ll testify that Mr. Williams was on the opposite side
       of the vehicle and did not actually see that, what he claims was an assault.

Apparently, the witness was not in the courtroom. After the exchange between the appellant and the
trial court, the trial court issued its verdict. In his brief on appeal, the appellant argues that the
witness was incarcerated, had been transported to court, had not been properly brought into the
courtroom and that his efforts to alert the trial court as to the witness’s status went “unheeded and
unrecorded.” The arguments of the appellant are not supported by the record. It is the duty of the
appellant to prepare a complete and accurate record on appeal. Tenn. R. App. P. 24(b). The record


                                                  -5-
does not contain a subpoena for the witness. Further, the record does not indicate that the appellant
attempted to “alert” the trial court as to the witness’s whereabouts. Moreover, the appellant did not
seek a continuance in order to attempt to locate the witness. Under the circumstances we find no
reversible error with regard to this issue.

              Failure to Receive Copy of the Indictment and Failure to Grant Continuance

         The appellant’s next three issues concern whether the trial court erred in failing to give the
appellant a copy of the indictment and whether the trial court erred in failing to grant a continuance.
Specifically, the appellant argues that the trial court violated the appellant’s due process rights by
failing to insure he had a copy of the indictment prior to trial and that the trial court erred by failing
to grant a continuance to allow the appellant more time to prepare for the case because he did not
have a copy of the indictment.

       It is not entirely clear from the record what actually transpired in the trial court. Prior to the
beginning of trial, the following exchange occurred:

        PROSECUTOR: Judge, he represents himself. He has filed a motion and I have read
        the motion. He is saying that he did not receive a copy of the affidavit. Evidently
        Mr. Strong asked that this be copied for him, but evidently they only copied for him
        the prosecution report, and so I’m hand delivering him a copy of the affidavit.
        THE COURT: Okay.
        PROSECUTOR: I, I - - he also is asking for a copy of the indictment. I believe that
        would have been given to him by Your honor at the - - I don’t provide that for him.
        That’s usually provided at arraignment, the copy of the indictment.
        THE COURT: Have we got a copy?
        PROSECUTOR: If not, I guess - -
        THE CLERK: There’s one - - let’s see. Do you have a copy of 2526933?
        PROSECUTOR: Do you have a copy of your other indictment sir?
        THE DEFENDANT: Yes, ma’am.
        PROSECUTOR: Okay. That’s two copies of that same indictment.
        THE DEFENDANT: Okay.
        PROSECUTOR: And it was set today, set today for, he says a pretrial conference.
        THE COURT: Right.
        PROSECUTOR: I have both of the officers here. I think he’s asking for more time
        since he’s got - - I mean, I’m prepared, but if he needs more time, I understand.
        THE DEFENDANT: Yes, sir.
        THE COURT: Let’s hear from the officers and see if you need more time, see if we
        can work it out, okay?




        3
            The case at issue herein is case number 252194.

                                                         -6-
After that exchange, the trial court heard the testimony of Officer Williams. At the conclusion of
the officer’s testimony, the appellant stated the following: “I didn’t have this, these indictments or
anything to prepare this, and I need some time in which to prepare.” The appellant went on to cross-
examine the witness, but again asserted that he was not “properly prepared.”

        On appeal, the appellant claims that he filed a motion in the trial court requesting a copy of
the indictment, but that motion is not in the record on appeal. Again, it is the duty of the appellant
to prepare a complete and accurate record on appeal. Tenn. R. App. P. 24(b). After a review of the
record, it appears that the appellant conceded that he received a copy of an indictment, but the record
is not clear as to whether the appellant received the “copy” of the indictment for the case herein.
Moreover, the appellant requested a “copy” of the indictment. Again, we cannot ascertain from the
record whether the appellant was merely requesting a copy of an indictment he had already received.
Because the record is insufficient to review this issue, the appellant is not entitled to relief.

         Further, the record indicates that the appellant did not explicitly ask for a continuance prior
to trial and did not file any motions requesting a continuance. The trial court has the discretion to
grant or deny a continuance and that decision will not be disturbed on appeal absent an abuse of
discretion. State v. Robinson, 146 S.W.3d 469, 517 (Tenn. 2004). In order to establish an abuse of
discretion, the complaining party must make a clear showing of prejudice as a result of the
continuance being denied. Id. The appellant has not done so with respect to this issue. We cannot
therefore grant relief on this issue.

                                     Sufficiency of the Evidence

        Finally, the appellant challenges the sufficiency of the evidence. Specifically, he contends
that “the court abused its discretion by believing the incongruous and conflicting statements of the
police officers while disbelieving any and all statement [sic] made by the [appellant].” The State
counters that the evidence “produced at trial clearly supports the . . . convictions for speeding,
assault, and resisting arrest.”

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-


                                                  -7-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Moreover, questions concerning
the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues
raised by the evidence are to be resolved by the trier of fact. State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1991).

        In the case herein, the appellant was convicted for speeding, assault and resisting arrest.
Tennessee Code Annotated section 39-16-602 sets out the elements of resisting arrest. That statute
states:

       It is an offense for a person to intentionally prevent or obstruct anyone known to the
       person to be a law enforcement officer, or anyone acting in a law enforcement
       officer’s presence and at such officer’s direction, from effecting a stop, frisk, halt,
       arrest or search of any person, including the defendant, by using force against the law
       enforcement officer or another.

Tenn. Code Ann. § 39-16-602(a). Force is defined as “compulsion by the use of physical power or
violence and shall be broadly construed to accomplish the purposes of this title.” Tenn. Code Ann.
§ 39-11-106(a)(12). A person commits assault who “intentionally, knowingly or recklessly causes
bodily injury to another.” Tenn. Code Ann. § 39-13-101(a)(1).

         Viewed in the light most favorable to the State, the evidence shows that, on October 4, 2004,
the appellant drove fifty-one miles-per-hour in a thirty-five mile-per-hour speed zone, assaulted a
police officer at a traffic stop and resisted arrest. According to Officer Williams, the appellant was
“traveling at a high rate of speed” and was clocked with the radar unit going fifty-one miles per hour
in a thirty-five mile-per-hour zone. As the officer pulled in behind the appellant and activated his
blue lights, the appellant ducked off onto a side street and attempted to elude the traffic stop. As the
appellant ducked onto the side street, Officer Meeks was able to pull in behind him and activate his
blue lights in pursuit of the appellant. The appellant finally pulled over. According to both officers,
the appellant exited his vehicle and became very belligerent. Officer Meeks testified that the
appellant slammed the door of the pickup truck on his hand, breaking his finger. When the officer
tried to place the appellant under arrest, the appellant pushed and resisted. The appellant disputed
the officers’ version of the incident. It is well-settled that any questions concerning the credibility
of the witnesses are resolved by the trier of fact. Pruett, 788 S.W.2d at 561. From the verdict, it is
obvious that the trial court accredited the testimony of Officer Williams and Officer Meeks.
Consequently, the evidence was sufficient to support the convictions. This issue is without merit.




                                                  -8-
                                             Conclusion

         For the foregoing reasons, the judgment of the trial court is affirmed. The matter is remanded
to the trial court for entry of corrected judgment forms.



                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




                                                 -9-
