### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 1, 2002
STATE OF TENN ESSEE v. ADRIANNE ELIZAB ETH NOLES

Appeal from the Circuit Court for Haywood County No. 4753 Clayburn L. Peeples, Judge

No. W2002-01558-CCA-R3-CD - Filed December12, 2002

Pursuant to Tennessee Cod e Annotated section 39-13-213(a)(1) (1997), the defendant, Adrianne Elizabeth Noles, was charg ed with veh icular h omicide b y r eckless ness in the

Haywood Count

y Circuit Court. She submitted a guilty plea to the cha rge, a Class C felony , and agreed to have the trial court de

termine t he leng th and manner of service of her sente nce. After

a sent encin g hearin g, the trial court imposed a three-y ear sentence to be served in the De part ment of Correction. Aggrieved

of the tri al court ’s rejection of an y se ntencing alterna tive to inc arcer

ation, she appeals

. We affir m. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d and Rem anded.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.

Tom Crider, Trenton, Tennessee (at trial), and Joyce D iane Blount, Trenton, Tennessee (on appeal), for the A ppellant , Adrian

ne Elizabe

th Noles.

Paul G. Summers, Attorney Gene ral & Reporter; John H. Bledsoe, Assistant Attorney Gene ral; and Garry G. Brown, District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

The conviction stems from ev ents o f Octobe r 14, 2001 , that unf

olded on I

nterstat e 40 in Haywood County . Based upon facts gleane d f rom the presentence report and testimony introducedin the sentencing hearing, the de fendant, who was 20 y ears old, was driving west on Inte rstate 40, accompanied by

a male friend and her four-y ear- old son. S he was traveling from Nashville to Arkan sas and w as appro ximately 30 minutes w est of Nashville when a car pulled up behind her, shined its high beams into the defenda nt’ s car, then pulled around and in front of the defendant’s car and braked. She was initially ange red and later somewhat frightene d as the two cars jockeyed in front of each other, sometimes reaching speeds of 90 miles per hour. At least once, the-2-

other car, which

was occupied by

two young H

ispanic males, disappeared but after a half hour or so, it reappeared behind the defendant’ s car with high beams activated.

This “c at -a nd -m ou se ” a ct iv it y co nt in ue d u nt il th e c ar s r ea ch ed Ha ywo od Co un ty, where the occupants of the other car beg an throwing objects at the defendant’s car. At

some point , according to th e defen dant, an obj ect was throw n thro ugh her car window. As she attempted to reach for the unknown object, the other car pulled in front of her and braked.

The defendant

had no recollection o f losing control o f her ca

r, cross ing the I

nterstat e median, or

colliding with the east-bound vehicle driven by the victim, Joseph Cooper. Mr. Cooper died from injuries s u stained in the accident. The defendant and her male companion were hospitalized but recovered from their injuries. The defendant’s child, riding in the rea r seat of the defendant’s car, was uninjured.

The post-accident blood test performed on the defendant was negative for drugs or alcohol. Alth ough the defendant admitted t

hat she ha d used co caine tw o day s before the acc ident, the rec ord co ntain s no pr oof th at her O ctobe r 14 act ions were in fluen ced by the d rug.

In the sente

ncing hearing , the vict

im’s mothe

r and fir st cousin o ffere d “victim impact” testimony. The

victim wa s an indust

rious y oung ma n who was devoted t

o his mothe

r, his four-y ear-ol d daught

er, and other memb ers of hi s family . Unders tandably , his loss was g rievous t o the family, espec ially to his young daughter.

The defe ndant testified that she deeply r egretted her actions on October 14 that resulted in the loss of the victim’s life. She admitted that she had driven at speeds u p to 90 miles per hour but denied that she had been weaving in and out of traffic, as wa s alleged in the presentence report. She admitted that she could have left the Inte rstate at any

one of a number of exit ramps and that she declined to do so. She did not know the men in the other car. She gave no thought

to the risks posed to her son in the rear seat.

The presentence report revea led that the defen dant began using marijuana and coca ine when she was thirt

een y ears old . She had u

nderg one trea

tment, inc luding r

esidentia l treatme nt in the past. She a sked the c ourt to av ail her th e opportu nity to enter an eigh te e n-month treatment program that offe red drug rehabilita tion and parenti ng skills educati on. She ha d thoroug

hly researched

the availability and aptness of the specific program that she describe d and testified that she would be accepted into the program, if the c ourt permitted, and that she would acqui r e a Gradua te Equivalency Diploma while in the program. Her great aunt and g reat uncle testified and confirmed

the tenta tive arr angeme nts in the tr

eatment p r ogram. They

assured the court that the defendant was genu inely remor seful about the victim’s death, say ing that she had expressed anguished empathy

for the victim; he, like her, was the parent of a four -year -old child.

The presentencereport also r eveale d that the de fendan t, at a ge 18, was c onvicted in Arkansa s of “spe eding ( 50 ina 40 MPH zone)” and driving without a driver’s license. At ag e 17,-3-

she was convicted i n Williamson Co unty, Tennessee

of “speeding (69 in 40 MPH zone).” The defendant’s juvenile record consisted of an a djudication of shoplifting.

The trial cou

rt imposed

the Class C f

elony , Range

I mini mum senten

ce of thr ee years. See Tenn. Cod

e Ann. § 40 -35-112( a)(3) ( 1997). I t ordere d the enti

r e sentence serv ed in conf

inement. On appeal , the d efenda nt li mits her gri evance to th e tria l cour t’s re jecti on of a ltern ative sente ncing. Following our review, we aff irm the trial court’s order of incarcer ation.

Before we begin our analy sis, we note that no transcript of the defendant’s pl e a submission heari ng ap pears in the record. A plea-submission hearing transcript would have containeda factu al basis for the court accepting the g uilty plea. See Tenn. R. Crim. P. 11( f). “ We have re peatedl

y he ld that fa ilure to include the

transcr ipt of the g

uilty plea hea ring in t h e recor d prohibits this cour

t from conducting

a meanin gful de novo review of the sentence.” State v. Jorge Obdulio Herrera, No. E1999 -00118-C CA-R3-CD, slip op. at 2 (Tenn. Crim. App. , Knoxville, July 20, 2000). Th

e defendant, as the ap

pellant, is oblige d to furni sh this court with a fair, accurate, and complete record of what transpired in the trial court

with respect to the issues that form the bases of the appeal. Tenn. R. A

pp. P. 24(b ); State v. B anes , 874 S.W.2 d 73, 82 (Tenn. Crim. App. 1993); State v. Miller , 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). In the absence of such a record, the affected issues are waived. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). However,
w e also have commented that occasionally we can “reconstruct . . . an undisputed version o f th e factual events of the crime” from the “bits and pieces”of the record on appeal. See Jorge Ob dulio Herrera , slip op. at 2-3, n.l. In the present ca se, the record of the sentencing he aring, including the presentencereport, affords us an adequate view of the nature and circumstances of the conviction offense. Thus, we proceed to the appe llate issue at hand.

When there is a

chall enge to the len gth, ra nge, or manner o f servic e of a se ntence, it is the duty of this court to conduct a de novo review of the record with a presumption that th e determinations made by the trial c ourt are correct. Tenn. Code Ann. § 40-35-4 01(d) (1 997). Thi s presumption is “conditioned upon the affirmativeshowingin the record that the trial court considered

the sentencing principles and all relevant fa cts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the app ella nt.” Id. In the event the rec ord fails to demonstrate the required consideration by the trial court, review of the sente nc e i s p ur el y de novo

. Id. If appellate re view reflects the trial court properl y consider ed all re levant f actors a nd it s fi ndings of fact are adequa tely supported by

the record, this court

must affirm the sentence, “even if we would ha ve preferred a differ

ent result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

An alternate sen te nce is any se ntence that does not involve total confinement. See generall y State v. Fields , 40 S.W.3d 435 (Tenn. 2001). A defendant who “is an especially mitiga

ted
or standar d offend er convi cted of a

Class C, D, o

r E felon y is presume d to be a f

avorabl e candid ate for alternative sentencingoptions in the absence of evidence to the contrary .” Tenn. Code Ann. § 40-35-102(6) (1997). Our sentencing law also provides that “c onvicted felons c ommitting the most
severe offens es, po ssess ing cri minal hist ories evinc ing a clear disregard for the laws and morals of-4-

so ci et y, and evinc ing fai lure of p ast effo rts at rehab ilitation, shall be given first priority re garding sentences involving incarceration.” Id. § 40-35-102(5) (1997). Thu s, a defenda nt who meets the above criteri a is pres umed eli gibl e for alternative sentencing unless suff icient evidence rebuts the presumption. However, the Act does not provide that all offenders who meet the cr iteria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances presented in each case. See State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

The presumption of favorable candidacy for alternative sentencing may be rebutted by “evidenc e to the contrary .” Fields , 40 S.W.3d at 440.

Guidance as to what constitutes evidence to the co ntrary ma y be found in the followi ng s entenci ng cons ideratio ns contai ned in Tennessee Code Annotated section 40-35-103(1) (1997) : (A) Confineme

nt is necessary

to protect society by

restraining a defendant who h as a long history of crimin al conduct; (B) Confinem ent is necessary to avoid depreciating the seriousness of the offense or confinement is especially s uit ed to provide an effective de

terren ce to othe

rs li ke ly t o commit similar offenses; or
(C) M easures less restrict

ive than confinement have freque ntl y or recently

been applied unsuccessfully to the defendant.

Id. When the presumption of favorable candidacy for alternative sentenci ng appl ies a nd the sta te seeks to rebut it via Code sect ion 40-35-1 03(1)(B) by s howing t hat conf inement isnecessa

ry to avoid depreciating the serious ness of the offense, a resulting trial cour t decision to impose total confinement

must be predicated upon a finding that the nature and circumstances of the offe nse are “especially

violent, horrifying , shocking, reprehensible, offensive, or otherwise of

an excessive or exaggerated

degree,” and the natur

e of the offense must outweigh all factors fa voring probation. State v. Travis , 622 S.W.2d 529, 534 (Ten n. 1981); see State v. Hartley , 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991) ( Travisqualifiers of nature and circumstances of of fense hav e been codi fied in section 40-35-103(1 )(B) which considers confinement to avoid depreciating the seriousness of the offense). “Sentencing decision s should not , howeve r, turn on a gene ralizatio n of the c

rime committed, such as the fact that a death occurred.” State v. Housewright , 982 S.W.2d 354, 356 (Tenn. Crim. App. 1997) (citi ng State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995)).

The defendant, a Range I

offender, enjoyed the presumption of favorable candidacy for alternative senten cing for her Class C felony

. See Tenn. Code Ann. § 40-35-102(6) (1997). Moreover, she was eligible for proba tion. See id. § 40-35-303(a) (1997).1 Th e companion did not app ear at the sent encing hearing. The defendant testifi ed about his hospitali zation,

but she was un inform ed ab out the nature and e xtent o f his injuries.
-5- In t h e present case, the trial court refe rred to the sentencing principles but did not refer specifically to Code se ction 40-35-103 in determining that a sentence of total confinement was appropriate. If a

trial cou rt ignor es the g overning

statute on rebutting the presumption favoring alternative sentenc ing in imp osing a s entence of total c onfineme

nt, we should

generally review the sentence de novo , without a presumption of correctness. See Fields , 40 S.W.3d at 440-41. However, in the pres ent case , we belie ve the pr esumption

of corr ectness applies because the trialcourt ta citly alluded to section 40-35-103 and to Travis / Hartley

. The trial judge “specifically [found] that the Defendant in order to maintain the moral symmetry between crime and punishment in a situat ion like thi s should se

rve thre e y ears in th

e State Penitentia ry as a Stand ard Off

ender.” We compre

hend this s tatement

to refer to the need to a

void depreciating the seriousness of the offense. See Tenn. Cod e Ann. § 40 -35-103( 1)(B) ( 1997). He also found “that this is just about as aggravated as a vehicular homicide by recklessness can be[,] . . . that the Defendant is guilty

of gross r eckless ness in operating her vehicle. She injured a passe nger. She had a child [] four years old.” Thus, the trial cour t found that the nature and circumstances of the offense were especially

reprehensible and exagge rated. See Trav is , 622 S.W.2d at 534.

We agree with this a ssessmen

t. The fatal accident which the defenda ntcaused was notjust the result of some fleeting moment of inattention; rather, it resulte d from a h igh-speed “cat

and-mouse” game which covered appr oximately 100 miles of I nterstate 40. Furthermore, the defendant did not come before thesentencing court wit h the cle anest of

hands. She

had prev iously been convicted of two speeding offenses, a nd one of those additionally involved her driving without
a license. Not only did the defenda nt’s recklessness result in the victim’s death, but it imperile d both passengers in her car, including her four-y ear-old son. When asked in the sentencing hear ing whether she realized that her conduct endange red her child, the def

endant s aid, “No, sir. I didn’t think about that.” Finally, t

he collision r esulted in

bodily injury to the def

endant’ s adult mal e companion; he spent twelve day s in the hos pital. 1 In our view, these circumstances warrant the trial court’s findi ng t hat the n ature of the offe nse was e

xagge rated. B ased upo n the aptness of this finding, the trial court’s imposition of a sentence of confineme nt is warranted.

We notice th at the co nviction ju dgme nt do es not provide for the prohibition from driving of a defendant convicted of vehicular homicide that

is mandated by Te

nnessee Code Annotated section 39-13-213(c) (1997). Pursuant to that Code section, the trial court mus t impose
a driving prohibition for

a period of time “not less than three (3) years nor more than ten (10) y ears.” Id

. Thus, on remand, the trial court sha ll revise the judg ment to comply with section 39-13-213(c ).

Otherwi se, we a

ffirm the trial cou rt’s judgment.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE