         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 10, 2002

               STATE OF TENNESSEE v. BOBBY L. MARSHALL

                      Appeal from the Criminal Court for Shelby County
                             No. 00-13631   Chris Craft, Judge



                   No. W2001-03106-CCA-R3-CD - Filed October 22, 2002


A Shelby County Criminal Court jury convicted the defendant, Bobby L. Marshall, of sexual battery,
a Class E felony. The defendant was sentenced as a Range I, standard offender to sixteen months
in the workhouse and fined two thousand dollars. The defendant appeals his conviction, claiming
that the trial court erred by refusing to instruct the jury on consent. We affirm the judgment of the
trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.
RILEY, JJ., joined.

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Bobby L. Marshall.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Katrina U. Earley, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         This case relates to the defendant’s sexual battery of the victim on May 25, 2000. The victim
testified that on May 24, 2000, he was looking for a job and called the Cleaborn Temple in Memphis
to ask about advertised job openings. The victim spoke with the defendant, who was a minister at
the Temple, and the defendant told the victim to bring him a resume the following day. On May 25,
the victim met with the defendant and gave the defendant a resume. The defendant told the victim
that he could have a secretarial-type position and took the victim on a tour of the Temple. Later, the
defendant congratulated the victim on the victim’s new job. The victim thought that the defendant
was going to shake his hand. Instead, the defendant hugged the victim tightly, like “a child hugging
a Teddy bear that they love so much, that they wouldn’t let it go for nothing in the world.” When
the victim nudged the defendant, the defendant gripped him tighter, nibbled on his ear, and grabbed
his buttocks. At some point, the defendant released the victim and said that he had to attend a church
meeting. The victim quickly left the Temple and went to the police.

       Through cross-examination of the state’s witnesses, the defense suggested that the victim
consented to the defendant’s actions. However, the defendant presented no proof, and the jury found
him guilty of sexual battery. The defendant now claims that the trial court erred by refusing his
request for a jury instruction on consent.

        In criminal cases, the trial court has the duty to charge the jury on all of the law that applies
to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a
complete charge denies the defendant his constitutional right to a trial by jury. See State v. McAfee,
737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). However, a special instruction need not be given
when its substance is already covered in the general charge. See Edwards v. State, 540 S.W.2d 641,
649 (Tenn. 1976).

        In this case, the defendant included the written jury instructions with the record on appeal.
Unfortunately, as the state points out, he failed to include the proposed jury instruction or the trial
court’s ruling on the instruction as part of the record. The appealing party 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.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); see also
T.R.A.P. 24. In the absence of a complete record, we must presume that the trial court’s ruling was
correct. See State v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992). Therefore, we
conclude that the trial court properly denied the defendant’s request for a consent instruction.

        Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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