# FILED
November 20, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1997 SESS ION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9606-CC-00256

) ) Putnam County v. ) ) Honorable Leon Burns, Jr., Judge ) DANNY HORN, ) (Sentencing) ) Appellant. ) For the Appellant : For the Appellee : David Neal Brady Charles W. Burson District Public Defender Attorney General of Tennessee and and H. Marshall Judd Clinton J. Morgan Assistant Public Defender Assistant Attorney Gener al of Tennessee 215 Reagan Street 450 James Robertson Parkwa y Cookeville, TN 38501 Nashville, TN 37243-0493 William Edward Gibson District Attorney General and Ben Fann Assistant District A

ttorney General 145 South Jefferson Avenue Cookeville, TN 38501

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Danny Horn, appeals as of right from the sentence to confinement imposed by the Putnam County Criminal Court for his conviction of attempted aggravated sexual battery, a Class C felony. As a Range I, standard offender, the defendant received a sentence of six years in the custody of the Department of Correction. On ap peal, the defendant contends that the tri al court erred by denying probation or some other form of sentencing alternative to confinement. We affirm the trial court.

The defendant, thirty-three y ears old at the time of the offense, was indicted for two counts of ag gravated sexual batt ery, Class B felonies, on his elevenyear-old niece. Purs uant to an agreement, the defendant pled g uilty to one count of attempted aggravated sex ual battery and receiv

ed a six-year senten ce. The other count was dismissed. The presentence report indicates that the defendant denied guilt for the offense, but pled guilty i n his best interests.

The record reflects that the defendant has no prior criminal rec

ord. The presentence report shows that the defendant admitted trying marijuana at age thirteen. He claimed that the last time he used it was in 1990. H e dropped out of school in the seventh grade and is il literate. Although the defendant has never held a permanent job, he has maintained employment as a s tock person, as a dishw asher and at a body shop. For approximately ten years, the defendant has w orked at a body shop. However, he woul d work for two to thr ee months, quit for six month s, and then return to work. The defendant claimed that the paint and fumes at the body shop aggravated his asthma, preventing him from w orking.3 Since July 1994, the defendant has not worked and receiv es disability payments. According to an evaluation conducted by the Social Security A

dministration, the def endant s uffers from the following illnesses or limitat ions: chr onic obst ructive pulmonary disease, asthmatic bronchitis, borderline intellectional f unctioning, and mild depression. A letter from one of the def endant’s doctors describes the defendant’s chronic obstructive pulmonary disease and asthmati c bronchitis as criti cal and states that his outlook is “v

ery grave.” F

or his illnesses, the defendant takes several medications. The records of the Social Security Adminis tration also show that t he defendant required hospitaliz ation on March 18, 1993, due to an a ttempted suicide. The defendant has not received ongoi ng psychiatric tr eatment.

Before trial, the defendant was ev aluated pursuant to court order for purposes of determining the defendant’s competency to stand trial and sanity. The evaluation revealed tha t the defendant was competent to stand trial and that an insanity defense could not be supported.

The victim’s statement contai ned in the presentence report s hows that the victim believes that she will never be able to trust the defendant or feel comforta ble being alone with him or another male. In her statement, th e victim stated that the defendant’s conduct hurt her and her family and has required her to obtain counseling for approximately two years.

The presentence report also contains a statemen t from the victim’s mother. The statement reflects that the victim had not been eating well and had started having nightmares. In her statement, the victim’s mother also stated that the victim would not go outside by herself because she feared that the defendant w ould be hiding outside waiting to hur

t her.4 The trial court imposed confinement i n the custody of the Department of Correction, stat ing in material pa rt the following:

Being an offense against a person less than 13 would make it aggravated. It’s a pretty seri ous offense, Mr. Horn. I can hardly und erstand how a person, even though you might be of limited capacity, I th ink you still unders tand the difference between right and wrong. It’s hard fo r me to understand how you coul d do this and then how we could s ay to you that because of the circumstances that you are in w e will punish you by suggesting that y

ou should be supervised for a period of time . I think this type of offense is a horrible offense. .

. . If it happened, it’s certainl y tragic and horri ble. .

. . But he has b een found guilty upon a plea, v iolated the trust of thi s individual, niece. The circu ms tances, although you contend justify something other than incarc eration, it seems to me that because of the nature ofthis charge and the seriousness of it and the impact that must be made upon Mr. Horn and others tha t th e Court would deny su spended sentence and remand him to D.O.C.
The defendant argues that the trial court fa iled to consider properly his lack of criminal record, his social history, and his physical and mental condition. He argues that the trial co urt improperly reli ed upon the nature and particular circumstances of the offense in this c ase which, alone, woul d not support a denial of probation. However, central to our holding in this case is the fact that the record on appeal does not contain a transcr ipt from the guilty plea hearing nor any other r ecord of the nature and circumstances of the criminal conduct upon whi ch the trial court reli ed. Thus, we are not in a position to conduct a proper de novo review of the sentence by which we must consi der the evidence receiv ed at the trial and the nature and characteristics of the cr iminal conduct. See T.C.A. § 40-35-210(b).
Also, with it appeari ng that the trial court relied substantially upon the nature of the offense, the fact that the transcr ipt of the guilty plea hear ing is not in the record on appeal means that we presume that the evidence supp orts the trial court’s sentencing determinations. See , e.g ., State v. Meeks , 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988). In this r espect, we note that the tri al court would not hav e been5

required to ignore th e fact that the evidence actuall y proved the more seri ous offense of aggravated sexual

battery, even though t he defendant only pled guilty to attempt. These circumstances may v ery well exi st in this case and justify the denial of an alternative sentence.

In any event, the a ppealing party ha s the obligation of preparing a complete and accurate record r elating to the issues on appeal. See T.R.A.P. 24(b). Absent the necessary rel evant material in the rec ord, we are essentiall

y precluded from considering the merits of the issue. See State v. Ballard , 855 S.W.,2d 557, 561 (Tenn. 1993). Therefore, we must concl ude that the evidence upon w hich the trial court re lied is sufficient to sustain the g rounds upon which the tri al court ordered confinement.

In consideration of the foregoing and the record as a whole , the judgment of conviction is affirmed.
Joseph M. Tipton, Judge

CONCUR:

Joe G. Riley, Judge

Thomas T. Woodall, Judge