FILED

May 28, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CR-00216

)

Appellee, )

) KNOX COUNTY

V. ) 

)

) HON. RICHARD BAUMGARTNER, 

REGINALD SUTTON, ) JUDGE

)

Appellant. ) (HARASSING CO MMUNICATIONS) 

FOR THE APPELLANT: FOR THE APPELLEE:

MARK E. STEPHENS JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

JAMIE L. NILAND SANDY C. PATRICK 

Assistant Public Defender Assistant Attorney General

1209 Euclid Avenue 2nd Floor, Cordell Hull Building

Knoxville, TN 37921 425 Fifth Avenue North 

Nashville, TN 37243

RANDALL E. NICHOLS

District Attorney General 

MARSHA SELECMAN

Assistant District Attorney General

City-County Building 

Knoxville, TN 37902

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Reginald Sutton, appeals from the sentencing order of the

Knox County Criminal Court. Defendant pled guilty to one count of making

harassing telephone calls. Following the sentencing hearing, the trial court

sentenced Defendant to serve eleven (11) months and twenty-nine (29) days, to be

served at seventy-five percent (75%). Defendant appeals the sentence, arguing

that it does not conform to the requirements of the Criminal Sentencing Reform Act

of 1989, and that the sentence is excessive and should be reduced on appeal or

remanded for a new sentencing hearing. We affirm the judgment of the trial court.

When an accused challenges the length, range, or the manner of service of

a sentence, this court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). 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). 

In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and characteristics of the criminal conduct involved; (e) any statutory

mitigating or enhancement factors; (f) any statement that the defendant made on his

own behalf; and (g) the potential or lack of potential for rehabilitation or treatm ent.
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Tenn. Code Ann. §§ 40-35-102, -103, and -210; see State v. Smith, 735 S.W .2d

859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law; and

made findings of fact adequately supported by the record, then we may not modify

the sentence even if we would have preferred a different result. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim. App. 1991).

At the sentencing hearing, Doris Davenport, the victim, testified that she and

the Defendant were living together on July 26, 1995, and it was their son’s birthday.

Davenport had been requesting that the Defendant move out of her home because

he “has kept [her] going through a lot of changes.” When she got home from work

that day, the Defendant came in her house and refused to give her his keys to the

house. Defendant picked up the telephone, and Davenport demanded to know who

he was calling. Defendant replied, “None of your dam n business.” Davenport hung

up the telephone, and Defendant spit in her face. Davenport told Defendant, “That

is it. Get out.” 

When Davenport turned her back and walked toward the kitchen, Defendant

grabbed her by her hair and threw her in the floor. Davenport described that

Defendant held a knife in his hand and cut her face while beating her in the floor.

Davenport stated that her two (2) year old son was watching the altercation, and she

kept repeating, “Do not beat me in front of my children.” Defendant kept beating her

and said, “I am going to kill you, bitch.” Davenport stated that she did not know what
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made him “snap back,” but that he said, “Oh . . . look what you have made me do.”

Defendant grabbed a towel, wiped the floor and then her face because there

was blood everywhere in the kitchen. He stated, “I am going to get the damn police,”

and ran out the door. Davenport did not see the Defendant after that, and he did not

call the police. Davenport called her brother who called an ambulance. She was

treated at the hospital where she received stitches. Davenport displayed her

remaining facial scars to the court. She stated that she took a warrant out against

the Defendant the following day.

Davenport stated that while she had formerly been convicted of armed robbery

and has been on parole, she has changed her life and did not feel that she deserved

to be treated this way. Following the above-described incident, Davenport received

harassing messages from the Defendant on her answering machine. These

messages were played for the court. Davenport described Defendant as being very

insecure and previously accusing her of having an affair with a man at work. She

believed that Defendant is “going to hurt somebody . . . and feels like he don’t [sic]

have no respect for the Court or nobody else.” Davenport stated that Defendant

could have killed her and felt like he “should not get a pat on the back [probation] for

what he did.” 

On cross-examination, Davenport admitted that she had been drinking the day

of the assault, but stated that she was not drunk. 
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The Defendant stated that he dated Davenport for over two (2) years and that

they had a child together. On the day of the assault, Defendant got off from work

and drove to Davenport’s home, where he was living at the time. He was on the

phone with his older son who called to ask for a ride home when Davenport came

out of the kitchen and asked who he was talking to. When he said that it was his

son, Davenport told him, “That is a lie. That is a girl.” Davenport hung up the

telephone and started calling Defendant names, then she returned to the kitchen.

Defendant followed her into the kitchen and asked why she was upset. Defendant

believed she had been drinking and was trying to be reasonable as he believes she

is a violent person. 

Davenport did not answer Defendant’s question, but started cursing at him

and spit in his face. Defendant spit back in her face, and Davenport reached onto

the counter for a knife. Defendant took the knife out of her hand, and the two started

fighting. He admitted that Davenport was bleeding, so he tried to wipe off her face.

After Defendant tried to help Davenport clean up, she went into the living room and

called her brother. Defendant stated that he had seen the police drive by, so he told

her he would get the police. 

When questioned as regarding the harassing phone calls, Defendant stated

that at the particular time he was upset with Davenport because he did care for her

and was upset that she had him put in jail for protecting himself. Defendant stated

that he was trying to let Davenport know that what she did to him was very wrong

and that he wanted to take a warrant out against her.
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The trial court sentenced the Defendant to serve eleven (11) months, twentynine (29) days at a rate of seventy-five percent (75%) release eligibility date in the

Knox County Penal Facility. If Defendant chose to attend the Domestic Violence

program offered by the Knox County Sheriff’s Department while incarcerated, the

trial court would consider an early release upon successful completion of the

program . The trial court made the following statem ent:

Well, you know, we have heard different versions of what happened on

July 26, 1995. I don’t know that, as in a lot of cases, we will ever know

exactly what happened out there and exactly what precipitated it, but

we know one thing for certain. That, as a result of that incident, Ms.

Davenport was beaten about the face. She was cut. She has a scar

on her face, and this is a classic domestic violence, and it is a very,

very serious problem that we have in our society.

For years, I think we swept it under the rug, or we kept it quiet. It was

a public embarrassment to the people involved in it. So they chose to

keep it quiet, and fortunately, I think that is changing. I consider it to be

one of the most despicable and concerning aspects of our -- one of the

problems we have in our society today, and to the extent that I can do

anything to have a positive effect on it, I intend to do that.

I have listened to this evidence here today. I have considered the presentence report. I have considered the conditions of the Sentencing

Act here, again, including in particular the necessity to avoid

depreciating the seriousness of the offense. These things don’t happen

just accidentally. It is a pattern. It is a course of conduct. 

Ms. Davenport, you are right. The fact that you had prior convictions

and are on parole doesn’t mean that anybody has got the right to beat

you. Mr. Sutton is currently, he says, employed, although here at the

end, that he is not working because of some medical condition. He is

forty-one years old. He is living with his mother. His expenses in life

are an automobile paym ent, and an amount he claims he is paying to

his mother as rent.

I think you need to spend some time in custody, Mr. Sutton. I am going

to order that Mr. Sutton serve this sentence. I am going to order -- I

can’t order, but I am going to advise him that I think it is in his best

interest that he attend and complete the Domestic Violence Program

offered by the Knox County Sheriff’s Department at the Detention

Facility.

Misdemeanor sentencing is controlled by Tennessee Code Annotated section

40-35-302 which provides in part that the trial court shall impose a specific sentence
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consistent with the purposes, principles and goals of the 1989 Criminal Sentencing

Reform Act. See State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). In

misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the

court is required to provide the Defendant with a reasonable opportunity to be heard

as to the length and manner of the sentence. Tenn. Code Ann. § 40-35-302(a). In

addition to setting the sentence based on the principles, purposes, and goals of the

Act, the court must set a release eligibility percentage which cannot exceed seventyfive percent of the imposed sentence. Id. at (d); Palmer, 902 S.W.2d at 393.

Alternatively, the trial court retains the authority to place the defendant on probation

either immediately or after a time of periodic or continuous confinement. Tenn. Code

Ann. § 40-35-302(e). 

Defendant argues that the only evidence the trial court considered in

sentencing him was evidence of another crime. The trial court specifically stated

within the record that it considered the presentence report, the conditions of the

Sentencing Act, and, in particular, the need to avoid depreciating the seriousness

of this type of offense. Defendant did not object to the evidence of another crime

during the sentencing hearing. The record reflects that the parties and the trial court

agreed in the plea agreem ent that the victim would be allowed to describe the details

of the assault as well as the harassing communications during the sentencing

hearing. 

Defendant also complains that the sentence is excessive. Misdemeanor

sentencing is designed to provide the trial court with continuing jurisdiction and a

great deal of flexibility. One convicted of a m isdemeanor, unlike one convicted of a

felony, is not entitled to the presumption of a minimum sentence. State v. Creasy,
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885 S.W.2d 829, 832 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1994).

Defendant received the maximum sentence as allowed by law due to the

circumstances surrounding the offense and his prior record. Tenn. Code Ann. § 40-

35-114(1) and (9). Although the discussion of applicable mitigating and enhancing

factors would be good for our review, it is not a requirement that those factors be

set forth explicitly within the record. State v. McKnight, No. 01C01-9509-CC-00313,

slip. op. at 2, Rutherford County (Tenn. Crim. App., at Nashville, June 11, 1996)

perm. to appeal denied, (Tenn. 1997) (citations omitted). In addition, the trial court

provided for possible early release so long as the Defendant completed a program

on dom estic violence. 

Finally, the Defendant argues that the sentence should be reduced or

remanded for a new sentencing hearing. As we have found no error in the trial

court’s sentencing as according to the Sentencing Act under our de novo review,

then we decline to modify the sentence imposed. This issue is without merit.

We affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JERRY L. SMITH, Judge

___________________________________

WILLIAM B. ACREE, JR., Special Judge