### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs Ju ne 22 , 20 10

STATE OF TENNESS EE v . AULTON CODY BARNES

Appeal f rom the Circ uit Court for Warre n Coun ty No. M- 11986 Larry B. Stanley, Jr., Judge

No. M2009- 01981-CCA -R3-C D - F iled Septem ber 15, 2010

On Marc h 6, 2009, the Warren County Gra nd J ury indicted Appellant, Aulton Cody Ba rnes, for indece nt exposure. On May 28, 2009, Petitioner enter ed an open plea to the char g e. On September 22, 2009, the trial cour

t entere d a judg ment sentenc ing Petitioner to six months with thirty day s to be serve d in incar cer ation and the rema inder to be serve d on probation. Appellant appea ls his
sentenc e arg uing that the trial court err ed in failing to g rant him full probation or, in the alterna tive,
g rant him judicial diversion. We have review ed the rec ord pre sented on a ppeal a nd conclude that the trial cour

t did not err. The ref

ore, w e af firm the judg ment of the trial c ourt.

T e n n . R

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J E R R Y L

. S M IT H , J

. , d e l i v e r e d t h e o p i n i o n o f t h e c o u r t , i n w h i c h T H O M A S T

. W O O D A LL a n d J

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R o b e r t T

. C a r t e r , T u l l a h o m a , T e n n e s s e e , f o r t h e a p p e l l a n t , A u l t o n C o d y B a r n e s

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R o b e r t E

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. , A t t o r n e y G e n e r a l a n d R e p o r t e r ; B r i a n C l a y J o h n s o n , A s s i s t a n t A t t o r n e y G e n e r a l ; D a l e P o t t e r , D i s t r i c t A t t o r n e y G e n e r a l
, a n d L i s a Z a v o g i a n n i s , A s s i s t a n t D i s t r i c t A t t o r n e y G e n e r a l
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O P I N I O N

F A C T U A L B A C K G R O U N D

The rec ord on appea l does not contain a transcr ipt of the proce eding s below. The following unde r ly in g f a cts wer e submitt ed as a “STATEMENT OF EVI DENCE I N L I EU OF TRANSCRI PT”:The Def endant, Cody Ba

rnes was arr ested on J anuar y 23, 2009, by an off duty Warren County

I nvestig ator.

Ba rnes was in the Wal-Mart in McMinnville at about 5:00 p.m. on a Fr iday evening

. He approa ched and struck up a conver sation with the investiga tor reg arding “x-rated movies.”

During the conver sation, the inves ti g a to r n o ti c e d B a

r n e s ’ p a n ts wer e open and h i s genit als wer e exposed. Upon seeing this, the investiga tor arr ested Ba rnes fo r indece nt expos ure.

The Warren County Gra

nd J ury indicted Ba

rnes for the i n s t an t offe nse on Marc h 6, 2009. There fore
, on May 27, 2009, Ba rnes enter ed an open plea to indece nt exposure and the matter

was c ontinued to severa l weeks f or a se ntence hear ing.

After discussing the matter with fa mily members, B arne s, throug h counsel, attempted to have his plea set aside . The judg e re fused to do so and conduc ted the
sentenc e hea

ring

.

The judge considere d the testimony of the investiga tor and Ba rnes, who testified he wor

ked for the State of Te nnessee and had no pr ior rec ord.

Ba rnes asked the judge to suspend his sentenc e and place [d] him on judicial diversion in vie w of his lack of rec ord. The judge ref used to do so, sentenc ing him
to eleve n (11) months and twenty -nine (29) day s suspended a [fter] jail[ ] service of 30 day s. He a lso denied B arne s [s ic] request for judicial diversion.

The trial court enter ed its judgme nt on September 22, 2009. Acc ording to the judgme nt, Appellant pled g uilty

to indecent e x posure, a s Class B misdemeanor

. The trial court sentenced Appellant to six months with thirty day s to be serve d in incar cer ation and the rema inder to be serve d on probation. Appellant filed a

timely notice of a

ppeal.

ANALYSIS

On appea l, Appellant arg ues that the trial court err ed in deny ing full probation and in deny ing judicial diversion. The State a rg ues that the trial c ourt’s judg ment should be aff irmed.

As stated above, there is no transcr ipt of the proce eding s below. Howeve r, Appellant has submitt ed a “Statement of the Evidence ” pursuant to Rule 24(c) of the Tenne ssee Rules of Appellate Procedur e which sta tes:

-2-(c) Statement of the Evidence When No Report, Recital, or Transc ript I s Available.

I f no stenog raphic repor

t, substantially verba tim rec ital or transcr ipt of the evidenc e or proceeding s is available
, the appellant shall prepa re a statement o f t h e evidence

or proce eding s from the best available means, including the appellant’ s rec ollection. The statement should convey a fair, acc urate and co mp le te acc ount of what transpire d with respe ct to those issues that are the bases of appea l. The statement, cer tified by the appellant or the appellant’ s counsel as an acc urate acc oun t o f t h e p roce eding s, shall be filed with the cler k of the trial court within 90 day s afte r filing the notice of
appea l. Upon filing the statement, the appellant shall simult aneously serve notice of the filing on the appellee
, acc ompanied by a short and plain decla ration of the issues the appellant intends to prese nt on appea l. Proof of s er v i ce s h al l be filed with the cler k of the trial court with the filing of the statement. I f the appellee has objections
to the statement as filed, the appellee shall file objections there to with the cler k of the trial court within fiftee n day s afte r service of the decla ration and notice of the filing of the statement. Any differ ence s reg arding the statement shall be settled as set forth in subdivisi on (e) of this rule.

The defe ndant has prese nted only the statement of the evidenc e to support his claim that the trial court err ed in deny ing him full probation and, in the alterna tive, judicial diversion. Appellant h as not included a prese ntencing repor t or a transcr ipt of the proce eding s in the re co rd

. T h e Statement of the Evidenc e is mere ly a re citation of wha t is included on the judg ment forms. Rule 24(c) states, “The statement [of the evidenc e] should convey a fair, acc urate and complete acc ount of wha t transpired w ith respec t to those issues that are the bases of appea l.” The S tatement of the Evidence provided by the defe ndant does not include any information as to what fac tors the trial
court c onsidered in se ntencing the def endant.

Appellant pled g uilty to indecent exposure found at Tenne ssee Code Annotated section 39-13-511( b). I ndece nt exposure under the fa ct s p rese nted is a misdemeanor. T.C.A. § 39-13- 511(b)( 1). There is a presumption of corr ectne ss tha t the misdemeanor sentenc ing de terminations of the trial court are valid in the absenc e of a rec ord to the contra ry

. State v. Troutman
, 979 S.W .3d 271, 274 (Tenn. 1998). Wit h the rec ord prese nted befor e us, we are unable to deter mine what fac tors the t rial court considere d o r did not consider when sentencing the defendant. There fore
, we must conclude that the trial cour t was cor rec t in sentencing the def endant.

CONCLUSION

For the fore g oing r easons, we aff irm the judg ment of the trial c ourt.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J E R R Y L

. S M I T H
, J U D G E

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