             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE                  FILED
                            MARCH 1997 SESSION
                                                            November 20, 1997

                                                            Cecil W. Crowson
STATE OF TENNESSEE,             )                          Appellate Court Clerk
                                )
             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 General of Tennessee
215 Reagan Street                    450 James Robertson Parkway
Cookeville, TN 38501                 Nashville, TN 37243-0493

                                     William Edward Gibson
                                     District Attorney General
                                             and
                                     Ben Fann
                                     Assistant District Attorney General
                                     145 South Jefferson Avenue
                                     Cookeville, TN 38501




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              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 appeal, the defendant contends that the trial court erred

by denying probation or some other form of sentencing alternative to confinement.

We affirm the trial court.



              The defendant, thirty-three years old at the time of the offense, was

indicted for two counts of aggravated sexual battery, Class B felonies, on his eleven-

year-old niece. Pursuant to an agreement, the defendant pled guilty to one count of

attempted aggravated sexual battery and received a six-year sentence. The other

count was dismissed. The presentence report indicates that the defendant denied guilt

for the offense, but pled guilty in his best interests.



              The record reflects that the defendant has no prior criminal record. 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. He dropped out of school in the

seventh grade and is illiterate. Although the defendant has never held a permanent job,

he has maintained employment as a stock person, as a dishwasher and at a body

shop. For approximately ten years, the defendant has worked at a body shop.

However, he would work for two to three months, quit for six months, and then return to

work. The defendant claimed that the paint and fumes at the body shop aggravated his

asthma, preventing him from working.




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              Since July 1994, the defendant has not worked and receives disability

payments. According to an evaluation conducted by the Social Security Administration,

the defendant suffers from the following illnesses or limitations: chronic obstructive

pulmonary disease, asthmatic bronchitis, borderline intellectional functioning, and mild

depression. A letter from one of the defendant’s doctors describes the defendant’s

chronic obstructive pulmonary disease and asthmatic bronchitis as critical and states

that his outlook is “very grave.” For his illnesses, the defendant takes several

medications. The records of the Social Security Administration also show that the

defendant required hospitalization on March 18, 1993, due to an attempted suicide.

The defendant has not received ongoing psychiatric treatment.



              Before trial, the defendant was evaluated pursuant to court order for

purposes of determining the defendant’s competency to stand trial and sanity. The

evaluation revealed that the defendant was competent to stand trial and that an insanity

defense could not be supported.



              The victim’s statement contained in the presentence report shows that the

victim believes that she will never be able to trust the defendant or feel comfortable

being alone with him or another male. In her statement, the 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 statement 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 would be hiding

outside waiting to hurt her.




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              The trial court imposed confinement in the custody of the Department of

Correction, stating in material part the following:

                      Being an offense against a person less than 13 would
              make it aggravated. It’s a pretty serious offense, Mr. Horn. I
              can hardly understand how a person, even though you might
              be of limited capacity, I think you still understand the difference
              between right and wrong. It’s hard for me to understand how
              you could do this and then how we could say to you that
              because of the circumstances that you are in we will punish
              you by suggesting that you should be supervised for a period
              of time. I think this type of offense is a horrible offense. . . .
              If it happened, it’s certainly tragic and horrible. . . . But he has
              been found guilty upon a plea, violated the trust of this
              individual, niece. The circumstances, although you contend
              justify something other than incarceration, it seems to me that
              because of the nature of this charge and the seriousness of it
              and the impact that must be made upon Mr. Horn and others
              that the Court would deny suspended sentence and remand
              him to D.O.C.



              The defendant argues that the trial court failed to consider properly his

lack of criminal record, his social history, and his physical and mental condition. He

argues that the trial court improperly relied upon the nature and particular

circumstances of the offense in this case which, alone, would 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 transcript from the guilty plea hearing nor any other record of

the nature and circumstances of the criminal conduct upon which the trial court relied.

Thus, we are not in a position to conduct a proper de novo review of the sentence by

which we must consider the evidence received at the trial and the nature and

characteristics of the criminal conduct. See T.C.A. § 40-35-210(b).



              Also, with it appearing that the trial court relied substantially upon the

nature of the offense, the fact that the transcript of the guilty plea hearing is not in the

record on appeal means that we presume that the evidence supports the trial court’s

sentencing determinations. See, e.g., State v. Meeks, 779 S.W.2d 394, 397 (Tenn.

Crim. App. 1988). In this respect, we note that the trial court would not have been



                                               4
required to ignore the fact that the evidence actually proved the more serious offense of

aggravated sexual battery, even though the defendant only pled guilty to attempt.

These circumstances may very well exist in this case and justify the denial of an

alternative sentence.



              In any event, the appealing party has the obligation of preparing a

complete and accurate record relating to the issues on appeal. See T.R.A.P. 24(b).

Absent the necessary relevant material in the record, we are essentially precluded from

considering the merits of the issue. See State v. Ballard, 855 S.W.,2d 557, 561 (Tenn.

1993). Therefore, we must conclude that the evidence upon which the trial court relied

is sufficient to sustain the grounds upon which the trial 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




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