         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 1, 2002

        STATE OF TENNESSEE v. ADRIANNE ELIZABETH NOLES

                     Appeal from the Circuit Court for Haywood County
                          No. 4753    Clayburn L. Peeples, Judge



                  No. W2002-01558-CCA-R3-CD - Filed December12, 2002


Pursuant to Tennessee Code Annotated section 39-13-213(a)(1) (1997), the defendant, Adrianne
Elizabeth Noles, was charged with vehicular homicide by recklessness in the Haywood County
Circuit Court. She submitted a guilty plea to the charge, a Class C felony, and agreed to have the
trial court determine the length and manner of service of her sentence. After a sentencing hearing,
the trial court imposed a three-year sentence to be served in the Department of Correction.
Aggrieved of the trial court’s rejection of any sentencing alternative to incarceration, she appeals.
We affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN, JJ., joined.

Tom Crider, Trenton, Tennessee (at trial), and Joyce Diane Blount, Trenton, Tennessee (on appeal),
for the Appellant, Adrianne Elizabeth Noles.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and
Garry G. Brown, District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

                The conviction stems from events of October 14, 2001, that unfolded on Interstate
40 in Haywood County. Based upon facts gleaned from the presentence report and testimony
introduced in the sentencing hearing, the defendant, who was 20 years old, was driving west on
Interstate 40, accompanied by a male friend and her four-year-old son. She was traveling from
Nashville to Arkansas and was approximately 30 minutes west of Nashville when a car pulled up
behind her, shined its high beams into the defendant’s car, then pulled around and in front of the
defendant’s car and braked. She was initially angered and later somewhat frightened as the two cars
jockeyed in front of each other, sometimes reaching speeds of 90 miles per hour. At least once, the
other car, which was occupied by two young Hispanic males, disappeared but after a half hour or so,
it reappeared behind the defendant’s car with high beams activated.

               This “cat-and-mouse” activity continued until the cars reached Haywood County,
where the occupants of the other car began throwing objects at the defendant’s car. At some point,
according to the defendant, an object was thrown through her car window. As she attempted to reach
for the unknown object, the other car pulled in front of her and braked.

               The defendant had no recollection of losing control of her car, crossing the Interstate
median, or colliding with the east-bound vehicle driven by the victim, Joseph Cooper. Mr. Cooper
died from injuries sustained in the accident. The defendant and her male companion were
hospitalized but recovered from their injuries. The defendant’s child, riding in the rear seat of the
defendant’s car, was uninjured.

               The post-accident blood test performed on the defendant was negative for drugs or
alcohol. Although the defendant admitted that she had used cocaine two days before the accident,
the record contains no proof that her October 14 actions were influenced by the drug.

               In the sentencing hearing, the victim’s mother and first cousin offered “victim
impact” testimony. The victim was an industrious young man who was devoted to his mother, his
four-year-old daughter, and other members of his family. Understandably, his loss was grievous to
the family, especially to his young daughter.

                The defendant testified that she deeply regretted her actions on October 14 that
resulted in the loss of the victim’s life. She admitted that she had driven at speeds up to 90 miles
per hour but denied that she had been weaving in and out of traffic, as was alleged in the presentence
report. She admitted that she could have left the Interstate at any one of a number of exit ramps and
that she declined to do so. She did not know the men in the other car. She gave no thought to the
risks posed to her son in the rear seat.

               The presentence report revealed that the defendant began using marijuana and cocaine
when she was thirteen years old. She had undergone treatment, including residential treatment in
the past. She asked the court to avail her the opportunity to enter an eighteen-month treatment
program that offered drug rehabilitation and parenting skills education. She had thoroughly
researched the availability and aptness of the specific program that she described and testified that
she would be accepted into the program, if the court permitted, and that she would acquire a
Graduate Equivalency Diploma while in the program. Her great aunt and great uncle testified and
confirmed the tentative arrangements in the treatment program. They assured the court that the
defendant was genuinely remorseful about the victim’s death, saying that she had expressed
anguished empathy for the victim; he, like her, was the parent of a four-year-old child.

              The presentence report also revealed that the defendant, at age 18, was convicted in
Arkansas of “speeding (50 in a 40 MPH zone)” and driving without a driver’s license. At age 17,


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she was convicted in Williamson County, Tennessee of “speeding (69 in 40 MPH zone).” The
defendant’s juvenile record consisted of an adjudication of shoplifting.

               The trial court imposed the Class C felony, Range I minimum sentence of three years.
See Tenn. Code Ann. § 40-35-112(a)(3) (1997). It ordered the entire sentence served in confinement.
On appeal, the defendant limits her grievance to the trial court’s rejection of alternative sentencing.
Following our review, we affirm the trial court’s order of incarceration.

                 Before we begin our analysis, we note that no transcript of the defendant’s plea
submission hearing appears in the record. A plea-submission hearing transcript would have
contained a factual basis for the court accepting the guilty plea. See Tenn. R. Crim. P. 11(f). “We
have repeatedly held that failure to include the transcript of the guilty plea hearing in the record
prohibits this court from conducting a meaningful de novo review of the sentence.” State v. Jorge
Obdulio Herrera, No. E1999-00118-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Knoxville, July
20, 2000). The defendant, as the appellant, is obliged to furnish this court with a fair, accurate, and
complete record of what transpired in the trial court with respect to the issues that form the bases of
the appeal. Tenn. R. App. P. 24(b); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993);
State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). In the absence of such a record, the
affected issues are waived. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). However,
we also have commented that occasionally we can “reconstruct . . . an undisputed version of the
factual events of the crime” from the “bits and pieces” of the record on appeal. See Jorge Obdulio
Herrera, slip op. at 2-3, n.l. In the present case, the record of the sentencing hearing, including the
presentence report, affords us an adequate view of the nature and circumstances of the conviction
offense. Thus, we proceed to the appellate issue at hand.

                When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This
presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the
appellant.” Id. In the event the record fails to demonstrate the required consideration by the trial
court, review of the sentence is purely de novo. Id. If appellate review reflects the trial court
properly considered all relevant factors and its findings of fact are adequately supported by the
record, this court must affirm the sentence, “even if we would have preferred a different result. State
v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                An alternate sentence is any sentence that does not involve total confinement. See
generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). A defendant who “is an especially mitigated
or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. §
40-35-102(6) (1997). Our sentencing law also provides that “convicted felons committing the most
severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of


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society, and evincing failure of past efforts at rehabilitation, shall be given first priority regarding
sentences involving incarceration.” Id. § 40-35-102(5) (1997). Thus, a defendant who meets the
above criteria is presumed eligible for alternative sentencing unless sufficient evidence rebuts the
presumption. However, the Act does not provide that all offenders who meet the criteria are entitled
to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances
presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

               The presumption of favorable candidacy for alternative sentencing may be rebutted
by “evidence to the contrary.” Fields, 40 S.W.3d at 440.

               Guidance as to what constitutes evidence to the contrary may be
               found in the following sentencing considerations contained in
               Tennessee Code Annotated section 40-35-103(1) (1997):

                       (A) Confinement is necessary to protect society by restraining
                a defendant who has a long history of criminal conduct;

                       (B) Confinement is necessary to avoid depreciating the
                seriousness of the offense or confinement is especially suited to
                provide an effective deterrence to others likely to commit similar
                offenses; or

                        (C) Measures less restrictive than confinement have frequently
                or recently been applied unsuccessfully to the defendant.

Id. When the presumption of favorable candidacy for alternative sentencing applies and the state
seeks to rebut it via Code section 40-35-103(1)(B) by showing that confinement is necessary to avoid
depreciating the seriousness of the offense, a resulting trial court decision to impose total
confinement must be predicated upon a finding that the nature and circumstances of the offense are
“especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or
exaggerated degree,” and the nature of the offense must outweigh all factors favoring probation.
State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); see State v. Hartley, 818 S.W.2d 370, 375 (Tenn.
Crim. App. 1991) (Travis qualifiers of nature and circumstances of offense have been codified in
section 40-35-103(1)(B) which considers confinement to avoid depreciating the seriousness of the
offense).

              “Sentencing decisions should not, however, turn on a generalization of the crime
committed, such as the fact that a death occurred.” State v. Housewright, 982 S.W.2d 354, 356
(Tenn. Crim. App. 1997) (citing State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995)).

                The defendant, a Range I offender, enjoyed the presumption of favorable candidacy
for alternative sentencing for her Class C felony. See Tenn. Code Ann. § 40-35-102(6) (1997).
Moreover, she was eligible for probation. See id. § 40-35-303(a) (1997).


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                In the present case, the trial court referred to the sentencing principles but did not
refer specifically to Code section 40-35-103 in determining that a sentence of total confinement was
appropriate. If a trial court ignores the governing statute on rebutting the presumption favoring
alternative sentencing in imposing a sentence of total confinement, we should generally review the
sentence de novo, without a presumption of correctness. See Fields, 40 S.W.3d at 440-41. However,
in the present case, we believe the presumption of correctness applies because the trial court tacitly
alluded to section 40-35-103 and to Travis/Hartley.

                The trial judge “specifically [found] that the Defendant in order to maintain the moral
symmetry between crime and punishment in a situation like this should serve three years in the State
Penitentiary as a Standard Offender.” We comprehend this statement to refer to the need to avoid
depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B) (1997). He also
found “that this is just about as aggravated as a vehicular homicide by recklessness can be[,] . . . that
the Defendant is guilty of gross recklessness in operating her vehicle. She injured a passenger. She
had a child [] four years old.” Thus, the trial court found that the nature and circumstances of the
offense were especially reprehensible and exaggerated. See Travis, 622 S.W.2d at 534.

                 We agree with this assessment. The fatal accident which the defendant caused was
not just the result of some fleeting moment of inattention; rather, it resulted from a high-speed “cat-
and-mouse” game which covered approximately 100 miles of Interstate 40. Furthermore, the
defendant did not come before the sentencing court with the cleanest of hands. She had previously
been convicted of two speeding offenses, and one of those additionally involved her driving without
a license. Not only did the defendant’s recklessness result in the victim’s death, but it imperiled both
passengers in her car, including her four-year-old son. When asked in the sentencing hearing
whether she realized that her conduct endangered her child, the defendant said, “No, sir. I didn’t
think about that.” Finally, the collision resulted in bodily injury to the defendant’s adult male
companion; he spent twelve days in the hospital.1 In our view, these circumstances warrant the trial
court’s finding that the nature of the offense was exaggerated. Based upon the aptness of this
finding, the trial court’s imposition of a sentence of confinement is warranted.

               We notice that the conviction judgment does not provide for the prohibition from
driving of a defendant convicted of vehicular homicide that is mandated by Tennessee Code
Annotated section 39-13-213(c) (1997). Pursuant to that Code section, the trial court must impose
a driving prohibition for a period of time “not less than three (3) years nor more than ten (10) years.”
Id. Thus, on remand, the trial court shall revise the judgment to comply with section 39-13-213(c).

                  Otherwise, we affirm the trial court’s judgment.

                                                               ___________________________________
                                                               JAMES CURWOOD WITT, JR., JUDGE


         1
          T he companion did not app ear at the sentencing hearing. The defendant testified about his hospitalization,
but she was uninformed ab out the nature and extent of his injuries.

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