1 The appellant was i ndicted for t

he first degree premeditated murder of Jeanna Diane Washburn. The Stat e filed not ice of its intent to seek the death penalty relying on the aggravating circum stances that the murder was " heinous , atrocious, o r cruel" and that the murde r was comm itted in the perp etration of a felo ny. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON September 12,

2000, Session
STATE OF TENNESSEE v. RONALD DAVID "BOO" BALLARD Direct Appeal from the Circuit Court for Henderson County

No. 96-276, Roy Morgan, Judge

No. W2000-00033-CCA-R3-CD - Decided - October 25, 2000

The appellant, Ballard, was found guilty by a jury of facilitating first degree murder. Following a sentencing hearing, the trial court imposed a sentenc

e of twenty

-five yea rs, the maximum sentence permitted for a class A felony . Ballard now appeals the se ntencing decis

ion of the lower c

ourt, arguingthat the court erred i n it s ap pli cat ion of t wo e nha nci ng fa cto rs a nd f ail ed t o ap ply a mitigating fact or . Finding the record incomplete for review of these issues, the trial court’s sentencing determination is afforded the presumption of correctness and the sentence is aff irmed. Tenn. R. App. P. 3; Ju

dgment of the Circ

uit Court is Affirme

d.
D AVID G. H AYES , J., delivered the opinionof the court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined. Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Ronald David "Boo" B allard.
Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor Gener al, Mark E. Davidson, AssistantAttorney General, James G. Woodall, District

Attorney Ge

neral, and Al Ear

ls, Assistant District Attorney General, for the appellee, State of Tennessee

.

OPINION
The appellant, Ronald David "Boo" Ballard, was found guilty by a Henderson

County jury of one count of criminal responsibility for facilitation of first degree murder re sulting from the 1994 homicide of Jeanna Diane Washburn. 1 The trial court imp osed a sente

nce of twenty

-five years co n finement

in the Department of Correction. The sole issue raised on appeal is whether the sentence imposed is excessive.2 The appellant' s now estranged wi fe, Tanya H. Ballar

d, was eighteen

years old at the time of the homicide. She
was origin

ally i ndicted on

October 7, 1996,

on one count

of facilita tion of first degre e murder . An order of nolle prosequi was subsequently filed by t he State on December 7, 1998. In February 1999, T anya Ballard was reindic ted on the charges of first degree murder; facili tation; an

d murder in the commis sion of a fel ony. On April 16, 1999, an or der of nolle prosequi was again fi led by the Stat

e. An infor

mation ch

arging Ms. Ballard wi

th fi rst degr ee murder,

facil itati on to commit second degree murder, and aggrava ted assault was filed by the State on Jul

y 8, 1999. Ms. Ballard wai ved presentment to the gr

and jury a

nd on July

12, 1999, she

entered a

guilt y plea t o aggravat

ed assaul t, for which a suspended sentenceof

three year s was imposed. Pursuant to he r negoti ated plea agreement

, the r emaining

counts we

re to be disposed of following T anya Ballar d’s testimony at h er husband ’s trial.The record is sil ent as to the disposition of these charges. -2- After review, w

e affirm. Background
No transcript of the

evidence at tria

l is included in th

e recor d. The following facts are excerpted from th

e presentence

report for back

ground purpose

s:
JeannaDiane Washburn was reported mi ssing by her fami ly after she left her parent's homeon highway 104 South on M ay 6, 199 4. W ash bur n, w ho h ad ce rebr al p als y, walkedto her own home, just across the road from her parents. When her father checked the house a

couple of hours later, the lights were on. The next morning, he foundthe front door partially open and his daughter

missing. On August 20, 1996, Sheriff's Department and TBI officers discovered human remains at a former sawm ill site on Phillips Road, off Highway 104 North of I-40, 11 miles from the Washburn residence. Besides the scattered skeletal remains, fragments of clothing were found within a 60-foot radius nor

th of the scatter of bones. Forensics experts identified the remains as Ms. Washburn's. Rona ld Balla rd claimed it was his wife who beat Washburn with a tire iron, while she maintained it was he.[ 2 ] The appellant pr

ovided the followin

g statement:
Ihelp [sic] hide the fact my wife had killed my ex-girlfriend, e ven though I didn' t know before hand w hat was goin g to happen , I take full responsibility for not contacting the p

olice, and helping

my wife avo

id arrest.
The presentence re

port reveals tha

t the appellant wa

s twenty-thr

ee years o ld at the time

of the homicide. At the time of his arrest, he was on parole, which was subsequently revoked in March of 1996 due to new charges of forgery , theft of property, and pos sessio n of stolen property. The appellant was returned at this time to TDOC cus tod y. This sentence, however, expired on November 17, 1999, at which time he was returned to the Madison County Criminal Justice Complex pending trial on the first degree murder cha rge. The appellant has a prior criminal history consisting of convictions for num erou s tr affi c off ens es, pub lic int oxi cat ion , bu rgla ry, ag grav ate d bu rgla ry, vandalism, hindering a secured creditor, numerous charges of theft of property less than $500, theft3 The victim received S SI disability benefits. -3-

of property

less than $1,000 andtheft of property less than $10,000, for a total of twenty -four prior convictions. At the time the presentence report was prepared, the appellant denied use of alcohol and stated that he had used ma rijuana "very

rarely" in the past. Notwithstanding this self-report, a 1992 TDOC classification report indicated that the

appellant had ad

mitted to both

alcohol and drug abuse.
In addition to the p roof contained in the presentence report, the following testimony wa s presented at the sente

ncing hea ring. Cathy Blankenship, the victim's sister, testified that Jeanna Washburn, the thirty-f

our-year -old victim, “was b

orn with what was called cerebral palsy. She had a physical disability. She couldn't walk. Her mental c apac ity, to know her, y

ou were looking

at a twelve-ye ar-old child.” She explained that her sister c ould eas ily be "led astray" by someone else. No twithstanding the victim's mental and physical limitations, she lived alone in a residence acros s the street from her parents. Jeanna Washburn was able to clean the house but was un

able to "fix a meal," "[t]hat's the reason she ate with my parents every night." Additionally, Jeanna Washburn could not manage money well. When she got her check, she did have enoug h sense about her that she would

go pay her

monthly bills fir st. What money was left, my mother kept, andwhen she needed money to buy

stuff with, they

would give her like $20, $30, and that way she could live on what she drawed [sic] a month.[ 3 ] Ms. Blankenship

added that her father would assist the victim in paying her bills. Additionally , the victim had a driver’s license

and would

drive her pa rents' vehi cle. The vic tim graduat ed from high school through taking special education classes and she had been married at one time.
In offer of mitigation, several of the appellant’s acquaintances testified that they knew of no instance where the appellant had ever exh ibi ted vio len t be hav ior . Ad dit ion all y, Martha Sue Ballard, the appellant's mother, testified that she had known the Washburn family all her life. Spe cif ica lly, she noted a friendship between the appellant and Jeanna. Regarding the appellant's now estranged wife, Tanya, Mr

s. Ballar d stated that Tanya "was very domineering" and would often threaten the appellant.
The appellant testified at the sentencing hearing and confirmed his prior convictions for one class C felony and

multiple class D an

d E felonies. He a

dmitted that, at th

e time of Jeanna Washburn's death, he was on parole stemming from sentences imposed for multiple property related crimes. In January

1996, he was revo

ked from p arole, however, this sen tence had expired

prior to the trial. The appellant admitted that he had in the past had a sexual relationship with the victim and that his wife, upon learning of this fact, had bec

ome angry . The appellant e xpressed his remor

se to the victim's fam ily o ver her death. He denied, however, that he harmed the victim in any way but admitted, “Leaving Jeanna laying out ther e was hard, and I was messed up on pills and everything, but there's still no excuse.”-4-

With reference to the challenged enhancing factors a nd the nonapplied mitigator, the trial court entered th

e following find

ings:
As to Number 4, the State alleges the victim of the offense was par

ticularly vu

lnerable because of age or physical or mental disability. I n this case, although the proof shows that this victim, Jeanna Wa

shburn, gradua

ted from high sch

ool with the help

of special ed, was able to drive

an automobile and w

as married at one

ti me, she stil l suffered from cerebral palsy. She had

a mental defect, and it was evident to all that knew her andI believe rendered

her somewhat i ncapacitat ed or less t han capable o f the average person in making decisions that might have affected even her decision that day to be withthose individuals

in that location. So the Court finds the State’s established that by a preponderance of the evidence.
As to Number

9, the Defendant possessed or employed a firearm, explosive device or other deadly wea

pon, and in this case we’re talking about a deadly wea pon without a doubt during the commission of this offense. Thejury found th is Defendant gu

ilty of facilitation. I was not there. I do not know the individual discussions of the jurors at the time, but I do know they found him guilty of facilitation. That facilitation could have involved the use of that tire tool on that particular occasion that resulted in the death of Je anna Wash

burn, and I find from the proof this Defendant has been established by preponderance of the evidence in this case.
As to the mitigating

factors in this case, Number 12, the Defendant acted under duress orunde r the domination of another person . . . the Court does not find tha t’s bee n establishedby the preponderance of the evidence. M r. Boo Ba llard, I’m convinced from the pr oof . . . could have stood his ground on that particular occasion and possibly saved the life of Jeanna Washburn.

. . .[N]or do Ifind any other mitigating factor or factors . . . that would be consistent with the purpose of the Tennessee Criminal Sentencing Act. . . .

. . . [C]onsidering all of the enhancing factors that have been found today and the lack of any mitigating factors under the circumstances, a nd con side ring the Court stated withthe presumptive sentenc e of 20 years . . . the Court feels that under the c ircumstances,

a 25-year

sentence, that be

ing the maximum sente

nce I can imp

os e under the law, wo

uld be appropria

te, and I do he

reby sente

nce you to

the term of

25 years to the Tennessee Department of Correction.

Analysis-5-

This court's review of

the length, ran

ge, or manner o

f service of a se

ntence is de novo with a presumption that the determination made by the trial court is correct. Tenn. Co de Ann. § 40-35-401(d) (1997). This presumption is onl y applica ble if the record demonstrates that the trial court properly considered releva nt senten cing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 9 1). The burden is on the appellant to show that the sentence imposed was improper. Id .; State v. Fletcher , 80 5 S.W.2d 785, 786 (Tenn. Crim. App. 1991); Se ntencing Commissio

n Comments, Tenn.Code Ann. § 40-35-401(d). The record reflects that the trial court considere d the relevant principles of sentencing; accordingly, the presumption is affor ded.
The tri a l court found six enhancement factors applicable: (1) prior history of criminal convictions;(4) vulnerability of the vic tim; (5) victim treated with exceptional cruelty; (8) unwillingness

to comply wi th sentences involving release in the community; (9) deadly weapon employed during commission of the offense; and (13) felony committed while on parole. See generally Tenn. Code Ann. § 40-35-114(1), (4), (5), (8), (9), (13) (1997 ). The court fo und no mitigating factors applicable. The trial cour t pr operly determined that the appellant was a Range I offender of a class A felony with an applicable sentencing rang e of “not less than fifteen (15 ) no r more than twenty-five (25) yea rs.” Tenn. Code Ann. § 40-35 -112(a)(1)(1997). When there are enhancement

factors and no mitiga ting facto rs, the trial court may set the sentence at or above the midpoint of

the range. Tenn. Code Ann. § 40-35-210(d); see also Tenn. Code Ann. § 40-35-210(c). After weighing the enhancement factors, the trial court imposed the maximum twenty-f ive year sentence.
In this appeal, the appellant contends that the trial court misapplied enhancement factors (4), vulnerability

of the victim, and (

9), use of deadly

weapon during c

ommis sion o f the offense. He additionally

argues that the trial court failed to apply mitigating factor (12), the def endant acted under domination of another person. See Tenn. Code Ann. § 40-35-1 13(1 2) (1997). Although the appellant requests that we conduct a de novo review of his sentence, the request is hindered by the lack of a complete record. In imposing a sentence, the trial court is required to consider "the nature and c ircumstances of the criminal conduct involved." Tenn.Code Ann. § 40-35-210(b)(4) (19 9 9 Supp.). If thes e "circumst ances" which are contained in the transcript of the evidence at trial are omitted, obviously, we are either precluded or handicapped in our de novo review. In the present case, the

appellant failed

to include a trans

cript of the trial

proceedings.

The particular enhancing and mitigating factors challenged by the appellant were developed at trial and notat the sentencing

hearing. The e

vidence presen

ted at t he s entencing hea

ring was sparse

at best andmost often contradictory as to the appellant’s role in the homicide. Moreover, the majority of the circumstances of the offense were presented through argument of both counsel for the State and for the defense. It is well-established that argument of counsel is not evidence. See State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). L ikewise, neither

are the recita

tion of fa cts nor argument of counsel contained in the briefs. Id . (citations omitted ). We h ave repeatedly and exhaustively

held that the failure t o include the transcript of relevant proceedings in the record prohibitsthis court from con ducting a meanin

gful de novo review. If t he appellate re

cord is inadequate, the reviewing court must presume that the trial court ruled correctly

. Statev. Ivy , 868-6-

S.W.2d 724, 728 (Tenn. Crim. App.1 993). The obliga tion of preparing

a complete and ad

equate record for the issues presented on appeal rests upon the appealing party

. See Tenn. R. App. P. 24(b). For this reason, we must necessarily conclude that the trial court properly applied enhancement factors (4) and (9) and properly refused to apply mitigating factor (12). Furt hermore, g iven the presenceof six enhancement factors and no mitigating factors, a sentence of twenty-fiv

e years fo r this offense is justified. Acco

rdingly, w

e conclude that th

e appellant has f

ailed to meet hi s burden of showing that the s

entencing dec

ision of the trial c

ourt was improper

. This issue is without

merit. Finding no error in the sentencing decision of the tri al court, the appellant’s sentence of twenty-five years is af

firmed.

___________________________________ DAVID G. HAYES, JUDGE