# FILED July 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9707-CC-00251 Appellee, ) ) HICKMAN COUNTY VS. ) ) HON. CORNELIA A. CLA RK, C. W. McCALEB, ) JUDGE ) Appellant. ) (Simple Assault)

FOR THE APPELLANT : TERRY B. LA RKIN 904 Hwy 48 South Dickson, TN 37055-3912 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter DARYL J. BRAND Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JOSEPH D. BAUGH, JR. District Attorney General RONALD L. D

AVIS Assistant

District Attorney

General Williamson County Courthouse Suite G-6 P.O. Box 937 Franklin, TN 37065-0937

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 OPINION
The defendant, C.W . McCaleb, was convicted by a Hickman County jury of simple assault. The jury fined him $1. The trial court sentenced the defendant to eleven (11) months and t wenty-nine (29) day

s with the sentence to be suspended after service of ni nety (90) days in th e county jail. The defendant presents three (3) issues in this direct appeal:
(1) whether the evidence presented at trial was sufficient to support the verdict; (2) whether the prosecuting attorney presented an improper closing argument; and (3) whether the trial

court properly sentenc ed the defendant. The judgment of the trial court is AFFIRMED.

FACTS
The state’s proof showed the follow ing. The victim, Neal

Lovelace, is an attorney who represented the ex-wife of the defendant’s son in divorce proceedings. Pursuant to L ovelace’s advice, the defendant’s daughter-in-law prepared to remove some items from the marital home. The defendant went t o Lovelace’s office to “clar ify” to Lovelace that he owned the house and all of its contents. When Lovelace’s secreta ry advised the defendant that Lovelace would not speak with him, the defendant stated in a threate ning tone, “[w]ell, if he won’t talk to me here, I ’ll catch him out on the cor ner.”
Ten (10) days after the defendant visited Lovelace’s off ice, Lovelace encount ered the defend ant while L ovelace was walking with a nother a ttorney, Jerry Smith. Smith g reeted the defendant, but Lovelace r emained silent. After Lovelace had passed, the defendant appr oached Lovelace from behind and stated, “I’m going to get you, you curly-headed m_____f_____.” Lovelace3

turned, noted the defendant had a fist clenc hed and his teeth gritted, and asked if the defendant was threatening him. Lovelace testif ied at this point he was in fear of imminent bodily harm from the defendant.The defendant’s reply to Lovelace was that he w as not threatening him, but that it would not be difficult to “whip your a__.”

The defendant offered a different version of the encounter. He denied doubling his fist and denied threatening Lovelace.

SUFFICIENCY OF THE EVIDENCE
In Tennessee, great weig ht is given to the re sult reached by the jury in a criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (T enn. 1992). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be dr awn therefrom. Id. ; State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreove r, a guilty ver dict removes the presumpti on of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt. Id.
Where sufficiency of the evidence is chall enged, the relevant ques tion for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes beyond a reasonab le doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Abr ams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibil ity of the witnesses' testimony are matters entr usted exclusively t

o the jury as the trier

s of fact. State v. Sheffield , 676 S.W.2d 542,4

547 (Tenn. 1984); State v. Brewer , 932 S.W.2d 1, 19 (Te nn. Crim. App. 1996).

The defendant was convicted of assa ult which requir es a person to “[i]ntentionally or knowingly cause another to reasonably fear imminent bodily injury. . . .” Tenn. Code Ann. § 39-1 3-101(a)(2). Love lace testified that through the defendant’s threatening speech and gestures, he felt that he w as about to be attacked by the defendant. The jury obviously accredi

ted the testimony of Lovelace over that of the defendant who offered a different version of the encount er. The e lements of assau lt were esta blished b y Lovelace ’s testim ony.

This issue is without merit.

IMPROPER CLOSING ARGUMENT
The defendant contends the prosecuting a ttorney improperly argued to the jury in his closing argument that Lovelace could lose his license to practice law if he committed perjury. The defendant failed to object to this a rgument at trial; therefore, the issue is waived. Tenn. R. App. P. 36(a). We further find the argument does not rise to the level of plain error. Tenn. R. Crim. P. 52(b).

This issue is without merit.

SENTENCING
The defendant argues the trial court erred in sentencing him be cause it erroneously considered convictions over ten (10) years old instead of solely relying upon the pre-

sentence report. He argu es this and the uncorroborated testimony of his enemies caused the trial court to erron eously sentence him to ninety (90) days i ncarceration.5 At the sentencing hearing numerous witnesses testi fied as to prior assaults committed by the defendant. These incidents did not resul t in any convictions. In additi on, the defendant had a 1970 petit larceny conviction and 1968 convictions for assault and battery and a weapons violation.
This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35 -401(d). This presumption is conditioned upon an affirmative showing i n the record that the trial judge considered

the sentencing principl es and all relevant facts a nd circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply w

ith the statutory direc

tives, there is no pre

sumption of correctness and our review is de novo
. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).

The trial court made exhausti ve findings relating

to the sentencing principles. The court noted that the defendant was presumed eli gible for alternative sentencing , and that his crime was not particularly eg regious. However, the court also noted the defendant had an extensi ve history of assaultive behavior

and that rehabilitation did not seem likely. In addition to the defendant’s prior history , the trial court observ ed that the defendant exhibited a lack of contrition and credibility, insisting every witness that testified against him lied.
Criminal conduct not resulting in convictions may be considered in sentencing. State v. Carico , ___S.W.2d___(Tenn. 1997); State v. Butler , 900 S.W.2d 305, 312 (Tenn. Crim. App. 1994). Further more, the trial court may properly consider prior convictions as an enhancement factor regardless of their age. Tenn. Code Ann. § 40-35-114( 1); State v. Hoyt Edward Carroll , C.C.A. No. 03C01-9607-CC-00254, Haw kins County (Tenn. Cri m. App. filed August 12, 1997, at Knoxville), perm. to app. denied (Tenn. March 2, 1998). The w eight to6

be given such convi ctions is within the discretion of the trial c ourt. State v Boggs , 932 S.W.2d 467, 47 5 (Tenn. Crim. App. 1996).

The defendant received the benefit of alter native sentencing. The bur den is on the defendant to establish sui tability for total probat ion. Boggs , 932 S.W.2d at 477. The defendant’s lack of credibility may properly be considered as it reflects upon one’s potential for rehabilitation. State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). We give g reat deference to the trial cour t who was in a position to judge the appearance and demeanor of the defendant. The defendant has failed to meet his burden of establ ishing entitlement to total probation.

Our review of the rec

ord indicates the trial court properly consi dered the sentencing principles and all relevant facts and circumstances. The sent ence imposed is entitled to a pres umption of correctness. We see no reason to modify it.
The judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE
CONCUR:

___________________________ CURWOOD WITT, JUDGE

___________________________ LEE MOORE, SPECIAL JUDGE