# FILED May 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706- CR-00216 ) Appellee, ) ) KNOX COUNTY V. ) ) ) HON . RICH ARD B AUM GART NER , REG INALD SUTT ON, ) JUDGE ) Appe llant. ) (HARASS ING CO MM UNICAT IONS)

FOR THE APPELLANT : FOR THE APPELLEE : MARK E. STEPHENS JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter JAMIE L . NILAND SANDY C. PATRI CK Assistant Public Defender Assistant Attorney General 1209 Euclid Avenue 2nd Floor, Cordel l Hull Bui lding Knoxvill e, TN 37921 425 Fifth Avenue North Nashvill e, TN 37243 RANDALL E. NICHOLS District Attorn ey Ge neral MARS HA SEL ECM AN Assistant Distri ct Attor ney General City-County

Building Knoxvill e, TN 37902

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndan t, Reg in ald Sutto n, appeals f rom the sentenci ng order of t he Knox County Cri minal Court. Defendant pled gui lty to one count of making harassing telephone cal l s. Following the se ntencing he aring, the trial court sentenced Defendant to ser ve eleven ( 11) months and twent y-nine (29) days, to be served at sevent

y-f iveperc ent ( 75%). De fendan t appeals the sentence, arguing thatit does not

conform to th e requirements of the CriminalSentencing Reform Act of 1989, and that the sentence is exce ssiv e and should be reduced on appeal or remanded for a new senten cing hea ring. W e affirm the judgm ent of the tria l court.
When an accused challenges the l ength, range, or the manner of servi ce of
a senten ce, this cou rt has a du ty to cond uct a de novo review of the sen tence w ith
a presumption t hat the determinations made by t he trialcourt are cor rect. Tenn. Code Ann. § 40-35-401( d). This pr esumption is “conditi oned up on the affirmative showing in the r ecord that t he trialcourt consi dered the sente ncing pri nciples and all relevant fac ts and circ umsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this co urt must con sider: (a) the evidence, if any, received at the tri al and the sentencing heari ng; (b) the presentence report; (c) the principl es of sentencing and ar guments as to sentenc ing alternativ es; (d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory mitigati ng or enhancement factor s; (f) any statement t hat the defen dant m ade o n his
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.-3-

Tenn. C ode An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith , 735 S.W .2 d 859, 863 (T enn. Crim. A pp. 1987).

If our rev iew refle cts tha t the trial court followed the statut

ory sentenci ng procedure, imposed a lawful sentence after hav ing given due considerati on and properweight to the factors and princi ples set out under the s entencing l aw; and made findings of fact adequatel y supported by therecord, then we may no t modify the senten ce even if we wou ld have p referred a different res ult. State v . F letcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

At the sentenci ng hearing, Dor is Davenport, the vi cti m, testif ied that s he and the Defendant were liv ing together on July 26, 199 5, and it was their so n’s birthday. Davenp ort had been requesti ng that theDefendant move out of her home because he “has kept [her]going through a lot of changes .” Whe n she got ho me from work thatday, theDefendant came in her house and refused to give her his keys to the house. Defendant picked up thetelephone, and Davenport demanded to know who he was calli ng. Defendant r eplied, “None of your dam n busine ss.” Davenport hung up the tele phon e, and Defe ndan t spit in her face. Davenport tol d Defendant, “ That is it. Get out.”

When Davenport turned her back and walked toward the ki tchen, Defendant grabbed her by he r hair an d threw her i n the floo r. Davenport described t hat Defendant held a knif e in hi s hand an d cut her face w hile beating her in the floor. Davenp ort statedthat he r two (2) year ol d son was watching t he altercat ion, and she kept repeating, “Do not beat me in f ront of my childre n.” Defendant kept beating her and said, “I am going to ki ll you, bitch.” Davenport stated that she did not know what-4-

made him “snap back,” but thathe said, “O h . . . look wha t you have made me do .”

Defendant grabbed a towel, wiped the floor and t hen herface becau se there
was blood everywh ere in the kitchen. H e stated, “I am going to get the d amn p olice,” and ran ou t the do or. Da venpo rt did not see th e Defe ndant a fter that, and he did not call the poli ce. Davenport cal led her brot her who call ed an ambulance. She was treated at t he hospital where she recei ved stitches. Davenport displayed her remaining facial scars to the cou rt. She stated that she took a warrant out against the Defend ant the following da y.

Dave nport stated th at while s he had formerly been convicted of ar med robbery and has been on parole, she has chang ed her life and did not feel that s he deserved to be treated this way. Followingthe above-described incident , Davenport r eceived harassing messages from the Defendant on her answering machine. These messages were pla yed for the court. Davenpo rt described D efendant as being very insecure and previously acc using her of having an aff

air wit h a man at work. She believed that Defendant is “going to hurt somebody . . . and feels l ike he don’t [si c] have no respect for the Court or nobody else.” Davenport stated that Defendant could have killed her and felt like he “sh ould no t get a pat on the back [ probation]for what he did.”

On cros s-examinati on, D avenport admit ted that s he had been drinki ng the day of the ass ault, but sta ted that sh e was n ot drunk
.-5- The Defendant stated that he dated Da venport for over two (2) year s and that theyhad a child together. On t he day of the as sault, Defendant got of f f rom work and drove to Davenport’s home, where he was l ivin g at the ti me. He was on the phone with his

older son who cal led to ask for a ride home w hen D ave npor t ca me out of the k itchen and a sked who h e was talking to. W hen h e said that it wa s his son, Dave nport to ld him , “Tha t is a lie . Tha t is a gi rl.” Davenport hung up t he telephone and sta rted call ing Defendant names, then she returned to the ki tchen. Defendant followed her into t he kitchen and as ked wh y she wa s upse t. Defendant believed she had been drinkingand was tryi ng to be reasonabl e as he believes she is a violent pe rson.
Davenp ort did not answer Defendant’s q uestio n, but s tarted c ursing at him and s pit in his face. De fendan t spit back in her face , and Da venport re ached onto the counter for

a knife. Defendant took t he knife out of her hand, a nd the two started fighti ng. He admitted that Davenport was bleeding, so he tried to wipe off h er face. After Defendant tr ied to hel p Davenport cl ean up, she went into t he livi ng room and called her bro ther. D efend ant sta ted tha t he ha d see n the p olice d rive by, s o he to ld her he w ould ge t the police
.

When questioned as r egarding the ha rassing phone cal ls, Defendant stated thatat the part icular t ime he was upset wit h Davenport because he di d care for her and was upset that

she had him putin jai l for pr otecting himself. Defendantstated thathe was tryi ng to let Davenport know that what she di d to hi m was very wrong and that he w anted to take a warrant out ag ainst her.-6- The trialcourt sent enced the Defenda nt to serve eleven (1 1) months , twentynine (29) days at a rate of s event y-five pe rcent (7 5%) r eleas e eligib ility date in the Knox Coun ty Pe nal Facilit y. If Defendant chose to at tend the Domestic Violence program offered by

the Knox County Sher iff’ s Department whil e incarcerated, the trialcourt would co nsider an ea rly r elease upon successf ul completi on of the program . The trial co urt mad e the follow ing statem ent: W ell, you know, w e have heard diff erent vers ions ofwhat happened on July 26, 1995. I don’ t know t hat, as in a l ot of cases, wewill everknow exactly what happened out t here and exactly what preci pitated it, but we know one thing for certai n. That, as a result of t hat incident, Ms. Daven port was beaten about t he face. She was cut . She has a s ca r on her face, and this i s a classic domestic viol ence, and it is a very, very serious prob lem that we h ave in our society. For years, I think w e swe pt it under the rug, or we kept i t quiet. It was a public embarr

assment to thepeople involved in it. So they c hose to keep it quiet, and fo rtunately, I think t hat is changi ng. I consider it to b e one of the most despi cable and concerni ng aspects of our -- one of t he pro ble ms we ha ve in our socie ty today, an d to the extent that I can do anything to have a positive effe ct on it, I intend to do that. I have listened to this

evidence here t

oday. I have considered the presentence report. I have consi dered the condi tions of the Se ntencing Act here, again, incl uding in particul ar the nece ss ity to avo id depreciati ng the seriou sness o f the offens e. T hese things don’ t happen just accide ntally. It is a pattern . It is a course of condu ct. Ms. Davenport, y

ou are right . The fact t hat you had pri or conv icti ons and are on parole does n’t mean that anybody has got the right to beat you. Mr. Sutton i s currently, he says, employed, alt hough here at the end, that heis not

wor kin g becauseof s ome medical condit ion. He is forty- on e years o ld. He is living w ith his mo ther. His e xpense s in life are an autom obile paym ent, and an amou nt he claim s he is pa ying to his mo ther as re nt. I think you n eed to spend so me time in c ustody, Mr. Sutton. I am going to order tha t Mr. Sutton serve this s ente nce. I am goi ng to order -- I can’t order, but I am going to advis e him that I thin k it is in his best interestthat he att

end and complete the Domestic Violence Program offered by the Knox County Sheriff ’s Department at the Detenti on Facility. Misdemeanor sente ncing is contr olled by Tennessee Code Annotated secti on 40-35-302 which provid es in part that the trialcourt shall i mpose a specific sentence-7-

consistent

with the purposes, principl es and goals of t he 1989 Criminal Sentencing Reform Act. See State v. Palmer , 9 02 S.W.2d 391 , 393 (T enn. 19 95). In misdemeanor senten cing, a separate sentencing heari ng is notmandatory, but the court is requi red to provide the Defe ndant w ith a reasona ble opportun ity to be heard
as to the l ength and mann er of the se ntence
. Tenn . Code Ann. § 4 0-35-30 2(a). In addition to setting t he sentence based on the principles, purposes, and goals of t he Act, the cour t must se t a release eligibility percentag e which can not exceed s eventyfive perce nt o f the impo sed se ntence
. Id . at (d); Palmer , 902 S.W.2d at 393. Alternatively, the tri al court r etains t he authorit

y to place t he defendant on pro bation either imm ediate ly or afte r a time of perio dic or continu ous confinement. Tenn. Code Ann. § 4 0-35-30 2(e).

De fendant argue s that th e only e videnc e the tria l court c onsid ered in sentencing hi m was ev idence of anot her crime. The t rial cour t specif icall y stated within the reco rd thatit consi dered the presentence report, the condit ions of t he Sentencing Act, a nd, in particul ar, the need to avoid depreci ating the seriousness of this type of of

fense. Defendant did not object to the evidence of anot her cri me during the sentenci ng hearing. The record reflects that the p arties and the trial court agreed in the plea a greem ent tha t the victim would be allo wed to desc ribe the details of th e assault as wel l as the har assing communicati ons during t he sentenc in g hearing
.

De fendantalso complains that the s entence is excessive. Misdemean o r sente ncin g is designed to provide t he trialcourt wit h continui ng jurisd iction and a great deal of flexibility. O ne con victed of a m isdem eanor, u nlike one convicted of a felony, is not entit led to thepresumption of a minimum sentence. State v. Creasy ,-8-

885 S.W.2d 829, 832 (Tenn. Cri m. App.), perm . to appeal denied , id . (Tenn. 199 4). D efendant received t he maximum sentence as all owed by law due to t he circumstancessurrounding t he offense and hi s prior record. T enn. C ode An n. § 40- 35-114(1) and (9 ). Altho ugh th e discu ssion of app licable mitigati ng and enhancing f actors woul d be good for our review, it is not a requir

ement that thos e factors b e set forth explicitly within the record. State v. McKnight , No. 01C01-9509-CC-00313, slip. op. at 2, Rutherfo rd County (T enn. Cri m. App ., at Nashv ille, June 11, 1996) perm . to appeal denied , (Tenn . 1997) (c itations om itted). In additio n, the trial court provided for possi ble early release so l ong as the Defendant completed a progr

am on dom estic violen ce.
Finally, the Defendant ar gues tha t the sen tence should be r educed or remanded for a new sent encing hearing . A s we have found no er ror in t he trial court’s sentencing as according to the Sentencing Act under ou r de novo revi ew, then we decline to modify th e sente nce im posed . This issu e is withou t merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ WILLIAM B. ACREE, JR., Special Judge