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

Briefs February

25, 2003
STATE OF TENNESSEE v. RICHARD ALBANY GOO DE

Appeal from the Circuit Court for Blount County No. C-13653 D. Kelly Thomas, Jr., Judge

No. E2002-01228-CCA-R3-CD April 2, 2003

Richard Albany Goo de, conv ic ted upon his guilty plea of statutory rape, a

ppeals from the Blount County Circuit Court’s imposition of a two-year incarcerative sentence. He claims he should have received an alternative sentence. Because the appellate rec ord does not contain evidence relied upon by the parties an d the cour

t at the sentencing hearing, w e hold that the defendant has waived our review o f his appe

llate issu e. We ther

efore a ffirm the sentenc e imposed

by t he trial c ourt. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opi ni on of the court, in which J OHN E VERE TT W ILLI AMS and R OBER T W. W EDEMEYER , JJ., joined.

Mack Garner, Maryville, Tennessee (at trial) and Julie A. Rice, Knoxville, Tennessee (on appea l), for the Appellant, Richard Albany Goode.

Paul G. Summ

ers, Attorney Gene

ral and Reporter; Helena Walton Yarbroug h, Assistant Attorney General; and Mike Fly

nn, District Attorney Gene ral, for the Appellee, State of Tennessee.
OPINION

The defendant, who was 35 years old at the time of the offense herein, was charged with the rape of the 17-year-old victim. He went to trial on the charge , and the jury wa s unable to reach a verdict . There after, he enter ed into a p lea ag

reemen t with the state whereby

he would enter
a guilty plea

to the offense of

statutory rape with no agreement as to the sentence he w ould receive. The lower court then conducted a sentencing hearing. Following rec eipt of the evidence, the court determinedthat the defendant should serve a maximum, Range I sentence of two ye ars for

the Class E felony. Fur

thermore, the co urt dete

rmin ed that the defendant’s poor prospects of reha bilitation warranted a sentence of c onfinement. The defendant then appealed, claiming that the lower court erred in deny

ing alternative sentencing.-2- In undertaking appellate review, we immediately notice the

absence of two critical document s from the appellate record. First, the parties and the court relied heavily on the evidence presented at the defendant’s prior trial, y et no transcript or

statement

of the evidence from that trial has been include d in the a ppellate record. Secondly , the record does not contain a sex offender evaluation report for the defendant. See Tenn. Code Ann. § 39-13-705 (Supp. 2002). We surmise from the record that this report was not prepare d, contrary to statutory mandate. See id.

With respect

to the evidence from the defendant’s prior trial, the recor d reflects that the pa rties ask

ed the court to rely

on the testimonial evidence and exhibits presented at the defendant’s prior rape trial. Furthermore, the record reflects that the

court did so in arr iving at its sent encing det ermination. Nevertheless, the defendant has not provided us with a tra nscript or statement of evidence from that trial or any exhibits received.

As we have said on o cca sions too numerous to count, the appealing party has an obligation to prepare a record which c onveys a fa ir, accurate and co mplete account of what transpiredwith respect to the issues whi ch form th e bases o f the app eal. Tenn. R. A pp. P. 24(a

); State
v. Boling , 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992). "Absent the necessary relevant material in the record an appellate court ca nnotconsider the merits of an issue." State v. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993). The Sen tencing Refo rm Act requi res th e tria l cour t, in sente ncing a defendan t, to consider among other factors, " [t]he evidence, if any, received at the trial and the sentencing hearing," Tenn. Code Ann. § 40-35-21 0(b)(1) (1997), a nd this cou

rt's de novo review on the record requires us, as well, to consider these f actors. See generally Tenn. Code Ann. § 40-35-401(d) (1997)

. The def endant' s failure

to prese nt a tran scrip t or stat ement of the evidence upon which the parties and the lower court relied at the sentencing hearing precludes our mandate d de novo review. “In the absence of an adequate record

on appeal, this court must presume that the trial court's rulings were supported by sufficient evidence.” State v. O ody, 823 S. W.2d 554, 559 (Tenn. Crim. App. 1991). Thus prevented from reviewing the defe ndant’s s entencing issue

on its merits, w e must aff

irm the two -y ear inc arcer ative se ntence imposed by

the lower court.
Ad di ti on al ly, we are compelled to note the absence o f the statutorily require d sex offender evaluation report from

the appellate record. See Tenn. Code Ann. § 39-13-703(3)(F) (Supp. 2002) (include s statuto ry rape as a “sex offense” for purpose s of the “Tennessee Standardized Treatment

Program for Sex Offenders”). Ther e is no evidence that the defendant actually underwent this evalu ation. I

n fact, we assume

the opposite inasmuch as the presentence report states that the defendant had not un dergo ne the ma ndated e valuatio n at the time he was interviewed by the presentencereport’s aut hor, and a lthough the presentence report author g ave the defendant information regarding whom to contact to complete the evaluation, the sentencinghearing transcript is devoid of any indica

tion that the evaluation took place or that such report was submitted and considered by

the lower court at sentencing.

The Crim inal Code requires that “each sex offender who is to be c onsidered for probation or any other

alterna tiv e sentencing shall be required to submit to an evaluation for treatme nt, risk pote ntial, procedures required for monitoring of be havior to protect victims and-3-

potent ial victi ms, and an identification under the procedures deve loped pursuant to § 39-13- 704(d)(1).” See id. § 39-13-705(a). Those who pl ead gui lty with out an agreeme nt as t o sent encin g, like the defendant herein, are not excepted fr om the requirement. See id

. § 39- 13-705(b). To be sure, those who

plead g uilty with no ag

reemen t as to sentenc ing are to have the report of such evaluation attached to the presentence repor t. The report of the evaluation is to be considered by the sentencing court in determining certain sentencing issues, and the treatment planrecomme nded in the report must be made a condition of any alter

native sentence granted. Id. The requirements of the statute are clear. I

f a sex offender is to be considered for an a lternative sentence , such as the defendant herein seeks, he “shall” submit to the evalua tion. See id . § 39-13-705(a).

The record

in this case does not reflect that the defendant submitted to the evaluation,
a requisite for

consideration for probation or other alternative sentencing. Ther efore, even if we had notdispo sed of the defendant ’s appea l via his fa

ilure to pr

epare a fair, a ccurat e, and c omplete appella te record, wewould be in a positio n to hold tha t the def endant c annot est

ablish on a

ppeal his claim to a non-incarcerative sentence because he failed to submit to the requisite s ex offende r evaluation and to ensur e that the rep ort ge nerated theref rom was c onsidere d by

the lower

court in passing sentenc e on him.

Ac co rd in gl y, we affirm the judgment of the Blount County Circuit Court which ordered a two-y

ear incarcerative sentenc e for the defendant’s statutory rape conviction.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE