State v. Danny Horn ( 1997 )

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
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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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