             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 sentence of twenty-five years, the maximum sentence
permitted for a class A felony. Ballard now appeals the sentencing decision of the lower court,
arguing that the court erred in its application of two enhancing factors and failed to apply a
mitigating factor. 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 affirmed.

                  Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL , J., joined.

Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Ronald David "Boo" Ballard.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark E.
Davidson, Assistant Attorney General, James G. Woodall, District Attorney General, and Al Earls,
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 resulting from the 1994
homicide of Jeanna Diane Washburn.1 The trial court imposed a sentence of twenty-five years
confinement in the Department of Correction. The sole issue raised on appeal is whether the
sentence imposed is excessive.


         1
           The appellant was indicted for the first degree premeditated murder of Jeanna Diane Washburn. The State filed
notice 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.
         After review, we affirm.

                                                      Background

       No transcript of the evidence at trial is included in the record. The following facts are
excerpted from the presentence report for background purposes:

         Jeanna Diane Washburn was reported missing by her family after she left her parent's
         home on highway 104 South on May 6, 1994. Washburn, who had cerebral palsy,
         walked to 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
         found the front door partially open and his daughter missing. On August 20, 1996,
         Sheriff's Department and TBI officers discovered human remains at a former sawmill
         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 north of the scatter of bones. Forensics experts identified the
         remains as Ms. Washburn's. Ronald Ballard claimed it was his wife who beat
         Washburn with a tire iron, while she maintained it was he.[2]

         The appellant provided the following statement:

         I help [sic] hide the fact my wife had killed my ex-girlfriend, even though I didn't
         know before hand what was going to happen, I take full responsibility for not
         contacting the police, and helping my wife avoid arrest.

        The presentence report reveals that the appellant was twenty-three years old 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 possession of stolen property. The
appellant was returned at this time to TDOC custody. 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 charge. The appellant has a prior criminal history consisting of
convictions for numerous traffic offenses, public intoxication, burglary, aggravated burglary,
vandalism, hindering a secured creditor, numerous charges of theft of property less than $500, theft


         2
           The appellant's now estranged wife, Tanya H. Ballard, was eighteen years old at the time of the homicide. She
was originally indicted on October 7, 1996, on one count of facilitation of first degre e murder . An order of nolle
prosequi was subsequently filed by the State on December 7, 1998. In February 1999, T anya Ballard was reindicted on
the charges of first degree murder; facilitation; and murder in the commission of a felony. On April 16, 1999, an order
of nolle prosequi was again filed by the State. An information charging Ms. Ballard with first degree murder, facilitation
to commit second degree murder, and aggravated assault was filed by the State on July 8, 1999. Ms. Ballard waived
presentment to the grand jury and on July 12, 1999, she entered a guilty plea to aggravated assault, for which a suspended
sentence of three years was imposed. Pursuant to her negotiated plea agreement, the remaining counts were to be
disposed of following T anya Ballar d’s testimony at h er husband ’s trial. The record is silent as to the disposition of these
charges.

                                                              -2-
of property less than $1,000 and theft 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 marijuana "very rarely" in the past. Notwithstanding this self-report, a 1992
TDOC classification report indicated that the appellant had admitted to both alcohol and drug abuse.

        In addition to the proof contained in the presentence report, the following testimony was
presented at the sentencing hearing. Cathy Blankenship, the victim's sister, testified that Jeanna
Washburn, the thirty-four-year-old victim, “was born with what was called cerebral palsy. She had
a physical disability. She couldn't walk. Her mental capacity, to know her, you were looking at a
twelve-year-old child.” She explained that her sister could easily be "led astray" by someone else.
Notwithstanding the victim's mental and physical limitations, she lived alone in a residence across
the street from her parents. Jeanna Washburn was able to clean the house but was unable 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 enough sense
       about her that she would go pay her monthly bills first. What money was left, my
       mother kept, and when 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 parents' vehicle. The victim graduated 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 exhibited violent behavior. Additionally, Martha Sue Ballard,
the appellant's mother, testified that she had known the Washburn family all her life. Specifically,
she noted a friendship between the appellant and Jeanna. Regarding the appellant's now estranged
wife, Tanya, Mrs. Ballard 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 and E felonies. He admitted that, at the time of Jeanna
Washburn's death, he was on parole stemming from sentences imposed for multiple property related
crimes. In January 1996, he was revoked from parole, however, this sentence 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 become angry. The appellant expressed his remorse to
the victim's family over her death. He denied, however, that he harmed the victim in any way but
admitted, “Leaving Jeanna laying out there was hard, and I was messed up on pills and everything,
but there's still no excuse.”




       3
           The victim received S SI disability benefits.

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       With reference to the challenged enhancing factors and the nonapplied mitigator, the trial
court entered the following findings:

       As to Number 4, the State alleges the victim of the offense was particularly vulnerable
       because of age or physical or mental disability. In this case, although the proof shows
       that this victim, Jeanna Washburn, graduated from high school with the help of special
       ed, was able to drive an automobile and was married at one time, she still suffered
       from cerebral palsy. She had a mental defect, and it was evident to all that knew her
       and I believe rendered her somewhat incapacitated or less than capable of the average
       person in making decisions that might have affected even her decision that day to be
       with those 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 weapon, and in this case we’re talking about a deadly weapon without
       a doubt during the commission of this offense. The jury found this Defendant guilty
       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 Jeanna Washburn, 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
       or under the domination of another person . . . the Court does not find that’s been
       established by the preponderance of the evidence. Mr. Boo Ballard, I’m convinced
       from the proof . . . could have stood his ground on that particular occasion and
       possibly saved the life of Jeanna Washburn.

       . . .[N]or do I find 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, and considering the Court stated
       with the presumptive sentence of 20 years . . . the Court feels that under the
       circumstances, a 25-year sentence, that being the maximum sentence I can impose
       under the law, would be appropriate, and I do hereby sentence you to the term of 25
       years to the Tennessee Department of Correction.



                                               Analysis




                                                  -4-
        This court's review of the length, range, or manner of service of a sentence is de novo with a
presumption that the determination made by the trial court is correct. Tenn. Code Ann. §
40-35-401(d) (1997). This presumption is only applicable if the record demonstrates that the trial
court properly considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). The burden is on the appellant to show that the sentence imposed was improper. Id.; State
v. Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991); Sentencing Commission Comments,
Tenn.Code Ann. § 40-35-401(d). The record reflects that the trial court considered the relevant
principles of sentencing; accordingly, the presumption is afforded.

        The trial court found six enhancement factors applicable: (1) prior history of criminal
convictions; (4) vulnerability of the victim; (5) victim treated with exceptional cruelty; (8)
unwillingness to comply with 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 found no
mitigating factors applicable. The trial court properly determined that the appellant was a Range I
offender of a class A felony with an applicable sentencing range of “not less than fifteen (15) nor
more than twenty-five (25) years.” Tenn. Code Ann. § 40-35-112(a)(1)(1997). When there are
enhancement factors and no mitigating factors, 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-five 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 commission of the offense. He
additionally argues that the trial court failed to apply mitigating factor (12), the defendant acted under
domination of another person. See Tenn. Code Ann. § 40-35-113(12) (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 circumstances of the criminal conduct involved." Tenn.Code Ann. § 40-35-210(b)(4) (1999
Supp.). If these "circumstances" 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 transcript of the trial proceedings. The
particular enhancing and mitigating factors challenged by the appellant were developed at trial and
not at the sentencing hearing. The evidence presented at the sentencing hearing was sparse at best
and most 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). Likewise, neither are the recitation of facts nor
argument of counsel contained in the briefs. Id. (citations omitted). We have repeatedly and
exhaustively held that the failure to include the transcript of relevant proceedings in the record
prohibits this court from conducting a meaningful de novo review. If the appellate record is
inadequate, the reviewing court must presume that the trial court ruled correctly. State v. Ivy, 868


                                                   -5-
S.W.2d 724, 728 (Tenn. Crim. App.1993). The obligation of preparing a complete and adequate
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). Furthermore, given the
presence of six enhancement factors and no mitigating factors, a sentence of twenty-five years for this
offense is justified. Accordingly, we conclude that the appellant has failed to meet his burden of
showing that the sentencing decision of the trial court was improper. This issue is without merit.

       Finding no error in the sentencing decision of the trial court, the appellant’s sentence of
twenty-five years is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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