        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               December 6, 2011 Session

               STATE OF TENNESSEE v. MARCUS ANDERSON

              Direct Appeal from the Criminal Court for Shelby County
                      No. GS-01176     W. Mark Ward, Judge


              No. W2011-00139-CCA-R3-CD - Filed September 5, 2012


A Shelby County Criminal Court jury convicted the appellant, Marcus Anderson, of domestic
assault by causing reasonable fear of bodily injury, and he received a sentence of eleven
months and twenty-nine days. On appeal, the appellant argues that the trial court erred by
instructing the jury on domestic assault by causing reasonable fear of bodily injury. Upon
review, we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Andre B. Mathis, Memphis, Tennessee, for the appellant, Marcus Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Robert Ratton, III, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On December 9, 2009, a warrant was issued for the appellant’s arrest. The affidavit
of complaint alleged that the appellant committed domestic assault in violation of Tennessee
Code Annotated section 39-13-111 and provided the following “essential facts constituting
said offense[]”:

              Victim Natasha Anderson advised her estranged husband,
              Marcus Anderson, came to her residence at 629 Duck Call,
              Cordova, to pick up their daughter and an argument began. The
              victim advised she asked him several times to leave the
              residence. She advised she opened the door and asked him to
              leave again, then he slammed the door and grabbed her by her
              feet causing her to fall and strike the back of her head on the
              stairs. She also advised once she was on the ground he began to
              choke her. The victim’s daughter, Jasmine, called the police and
              before the police arrived Marcus Anderson took the victim’s cell
              phone and left the scene.

       Following a hearing in general sessions court, the appellant was found guilty of
domestic assault. The appellant filed a de novo appeal to the Shelby County Criminal Court,
and a trial was held on October 1, 2010. Neither a transcript of the trial nor a statement of
the evidence was included in the appellate record. The record contains what purports to be
the written jury instructions; however, a transcript of the trial court’s instructions was not
included. The written instructions indicate that the trial court instructed the jury as follows:

                      The defendant, Marcus Anderson, is charged with a
              Domestic Assault which is alleged to have occurred on or about
              July 5, 2009. The first count charges DOMESTIC ASSAULT
              BY CAUSING BODILY INJURY. Included within this offense
              is the lesser-included offense of DOMESTIC ASSAULT BY
              PROVOCATIVE CONTACT . . . . The second count charges
              DOMESTIC ASSAULT BY CAUSING REASONABLE FEAR
              OF BODILY INJURY.

       The jury found the appellant not guilty of domestic assault by causing bodily injury
and not guilty of domestic assault by provocative contact. However, the jury found the
appellant guilty of domestic assault by causing reasonable fear of bodily injury.

        On appeal, the appellant maintains that the trial court erroneously charged the jury on
domestic assault by causing reasonable fear of bodily injury because “[t]here are simply no
facts alleged in the Affidavit of Complaint that support the conclusion that [the appellant]
placed [the victim] in reasonable fear of bodily injury.” In other words, he contends that the
facts alleged in the affidavit of complaint were adequate to provide notice that he was
charged with assault by causing bodily injury or by provocative contact; however, he was not
on notice of the charge of domestic assault by causing reasonable fear of bodily injury.
Therefore, the jury should have been instructed on “the means specific in the charging
instrument.”



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                                        II. Analysis

         Initially, as we have noted, the record on appeal does not contain a transcript of the
trial, a transcript of the jury instructions, or a statement of the evidence summarizing the
proof adduced at trial. The State contends that the appellant has waived the issue by failing
to include the foregoing materials. In response, the appellant maintains that he has not
waived the issue, arguing that to review his claim, this court need only consider the affidavit
of complaint, which is the charging instrument, and the written jury charge. We agree with
the State.

       Rule 24(b) of the Tennessee Rules of Appellate Procedure provides that “the appellant
shall have prepared a transcript of such part of the evidence or proceedings as is necessary
to convey a fair, accurate and complete account of what transpired with respect to those
issues that are the bases of appeal.” See also Thompson v. State, 958 S.W.2d 156, 172
(Tenn. Crim. App. 1997). This court has previously cautioned that

              [f]ailure to include a transcript normally waives review of
              appellate issues pertaining to jury instructions because without
              a complete record, it is impossible for this court to discern
              whether the written jury instruction conforms to the instructions
              as read to the jury and thus, whether error actually occurred. See
              Tenn. R. App. P. 24(b); State v. Jones, 623 S.W.2d 129 (Tenn.
              Crim. App. 1981).

State v. Dedonnas R. Thomas, No. W2000-01465-CCA-R3-CD, 2002 WL 1558687, at *7
(Tenn. Crim. App. at Jackson, Jan. 30, 2002); see also State v. Andrew Douglas Rush, No.
M2009-02253-CCA-R3-CD, 2010 WL 4868086, at *7 (Tenn. Crim. App. at Nashville, Nov.
29, 2010), perm. to appeal denied, (Tenn. 2011); State v. Walter Wilson, No.
W2001-01463-CCA-R3-CD, 2002 WL 31259461, at *5 n.2 (Tenn. Crim. App. at Jackson,
Sept. 4, 2002); State v. Thomas Mitchell, No. W1998-00509-CCA-R3-CD, 1999 WL
1531758, at *4 n. 2 (Tenn. Crim. App. at Jackson, Dec. 20, 1999).

        The charging instrument accused the appellant of committing domestic abuse as
defined by Tennessee Code Annotated section 39-13-111. Generally, a charging instrument
meets constitutional and statutory requirements when it satisfies “the overriding purpose of
notice to the accused.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000); see also State
v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Usually, an accused is sufficiently put on notice
when a charging instrument cites a particular statute. See Rigger v. State, 341 S.W.3d 299,
316-17 (Tenn. Crim. App. 2010); State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); State v.
Carter, 988 S.W.2d 145, 149 (Tenn. 1999). Moreover, our supreme court has stated that a

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charging instrument “need not allege the specific theory or means by which the State intends
to prove each element of than offense to achieve the overriding purpose of notice to the
accused” Hammonds, 30 S.W.3d at 300. From the limited record before us, it appears that
the charging instrument was sufficient to put the appellant on notice of the charged offenses.
However, without the trial transcript, a statement of the evidence, or a transcript of the jury
instructions, we are unable to discern exactly what occurred in the trial court. Thus, this
failure precludes review of the issue.

                                      III. Conclusion

      In sum, we conclude that the appellant has failed to preserve the issue for appeal.
Accordingly, we affirm the judgment of the trial court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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