### FILED June 29, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUARY 1999 SESSION

STATE OF TENN ESSEE, ) ) Appellant, ) C.C.A. No. 03C01-9712-CR- 0 054 1 ) vs. ) Knox County ) LESTER DOUGLAS BELL, ) Hon. Richard Baumgartner, Ju dge ) Appellee. ) (Misdemeanor Assault)

FOR THE APPE LLANT: FOR THE APPELLEE: MARK E. STEPHENS JOHN KNOX WAL KUP District Public Defender Attorney General & Repor ter PAULA R. VOSS and ELLEN H. POLLACK JAMIE LYNN NILAND Assistant Attorney Gener al Assistant Public Defenders 425 Fifth Ave. N., 2d Floor 1209 Euclid Avenue Nashville, TN 37243-0493 Knoxville, TN 37921 RANDALL E. NICHOLS District Attorney General JANET S. GURWITCH Assistant District A

ttorney 400 Main, P.O. Box 1468 Knoxville, TN 37901-146 8

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE

OPINION1 Tenn. Code Ann. § 39-13-101(a)(1) (1997). 2 The defendant, Lester D ouglas Bell, appeals from his conviction of misdemeanor

assault 1 in the Knox County Cr iminal Court. The trial court imposed
a sentence of eleven (11) months and tw enty-nine (29) days

to be suspended after serving the first 30 days in confinement. In this direct appeal, the d efendant raises four issues: I. Whether the trial court erred in denying the defendant’s motion for a court reporter to be pr ovided by the state. II. Whether the evide nce was sufficient to support t he jury’s verdict and whether the trialcourt erred in failing to set as ide the verdict. III. Whether there was prosecutorial miscond uct in the following: a. Eliciting testimony regarding the

defendant’s history of violence i n his relationship wi th the victim; b. During voir dire , continuous ly using the term “domestic violence”; c. During voir dire , telling the jury to assess the defendant ’s credibility

by the fact that he hada strong interest in the outcome of the case. IV. Whether the trial court erred i n denying full probation an d ordering an excessi

ve sentence. After a review of the record

and the briefs of theparties, we affirm the judg ment of the trial court.

On November 14, 1995, Sherri Bell, the defendant’s wife at that time, wentto meet her friends at Applebee’s after work. She called the defendant to tell him where she was goi ng and asked him to pick up their daught er. Sometime later that evening, the defendant and the daug hter went to Applebee’s to locate Mrs. Bell. The defendant approached Mrs. Bell and ask ed her to le ave. Mrs. Bell sai d she would leave “

shortly” and the defendant left the restaurant. A

few minutes later, the defendant returned to Mrs. Bell’ s table a t Applebee’s. Mrs. Bell testified that the defendant grabbed her glass and t old her toleave. Mrs. Bell told the defendant to leave the restaurant and said the daughter should stay there with her. Mrs. Bell2 Tennessee Code Annotated section 40- 14-307(a) states: “A desi gnated

reporter shall attend every stage of each criminal case before the court and sha ll record verbatim . . . al l proceedings had in open c ourt and such other proceedings as the judge may direct.” Tenn. Code Ann.§ 40-14-307(a) (1997). A criminal case is defined as “the trial of any criminal offense which is punishab le by confinement in the state penitentiary.” Tenn. Code Ann. § 4 0-14-301(3) 3 testified that the defendantshoved her and caused her to fall and hit her head and
nose. The defendant testified that Mrs. Bell slapped him as he was reaching for his daughter and that he pushed Mrs. Bell aftershe slapped him. The defendant stated that Mrs. Bell fell off her stool while try

ing to slaphim. The defendant left with their screaming daughter as Mrs. Bell followed them through the restaurant. Mr s. Bell testified that the defendant “backhanded” her. The defendant testified that Mrs. Bell hit him on the back of the head.

Donald Gorski was

sitting at the table with Mrs. Bell. Mr. Gorski testified that he did not hear the conversation between the Bells. He t estified that he did not see Mrs. Bell hi t the defen dant, nor did he see the defendant shove or backhand Mrs. Bell. He s aw Mrs. Bell on the floor after she had fallen, but he did not know how she got th ere. He saw Mrs. Bell with her ear and nose bleeding after the defendant

left the restaur ant. He “presu med” tha t the defe ndant hit her.

On this evidence, the

jury found the defendant guilty of misdemeanor assault.
I. Court Reporter

The defendant challenges the trial co urt’ s denial of his motion for a court reporter to be provided at stat e expens e at his misdemeanor trial. In Tennessee, a defendant in a misdemeanor tri al is not automatically provided with
a court reporter at st ate expense. 2 Therefore, a verbatim transcript will be(1997). 4

unavailable on appeal unless the defendant emp loys a court report er . When a verbatim transcrip t is unavai lable, an appellan t may p repare a statement of the evidence. Tenn. R. App. P. 24(c). The appellee may file objections to the st atement of the evidence, and the trial court shall decide what is pro perl y includable in the statement of the ev idence. Tenn. R. App. P. 24(c) , (e).

An indigent defendant “must be affo rd ed as adequate appellatereview
as defendants who have money enough to buy transcripts.” Griffin v. Illinois , 351 U.S. 12, 19, 76 S. Ct. 585, 591 ( 1956). Indig ent defendants in both felony and misdemeanor

cases have the right t o adequa te appel late revie w. Mayer v. City of Chicago , 404 U.S. 18 9, 195-96, 92 S . Ct. 410, 415 (1 971) (citing Willi ams v. Oklahoma

City , 395 U.S. 458, 459, 89 S. Ct. 1818, 181 9 (1969)). The state must provide an indigent defendant with a “‘record of sufficient completeness’ to permit proper consideration of (his) claims.” Draper v. Washington , 372 U.S. 487, 499, 83 S. Ct. 774, 781 (19 63) (quoting Coppedge v. United States , 369 U.S. 438, 446, 82 S. Ct. 917, 921 (1962)). “A ‘record of sufficient complet eness’ does not translate automatically into a complete verbatim transcript.” Mayer , 404 U.S. at 194, 92 S. Ct. at 414 . Accordin gly, we must rev iew the sufficiency of the “ Amended Statementof the Evidence” filed by the defendant to ensure that the defendant’s claims may be properly rev

iewed on appeal. See State v. Gallagher , 738 S.W.2d 624, 626 (Tenn. 1987).

The defendant’s statement of the evidence is a very detail ed account of the trial proceedings. The state and the trial judge approved the statement of the evidence. However, the defendant contends that a verbatim transcript is necessary in order “to portray th e nu ances and details of the witne sses’ testimony and the5

rulings of the trial judge.” There is no indication that the defendant was prevented from including any information in the statement of the evidence due to state or trial court objection. We find that the statement of the evidence sufficien tly descri be s the witnesses ’ test imonies and the trial judge’s rulings upon which this appeal is based. The trial court did not err by denying the defendant’s motion for a court reporter.
II. Sufficiency and the Thirteenth

Juror Rule A. Next, the defendant challenges the sufficienc y of the evidence. When
an acc used challenges the sufficiency of the evidence, an appellate cou rt’ s standard of review is w hether, after considering the evidence in the li ght most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackso n v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 279 1-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985) ; Tenn. R. App. P. 13(e). This r ule applies to findings of gui lt based upon direct ev

idence, cir

cums tanti al evidence, or a combinati on of direct and circumstantial evidenc

e. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the e vide nce, this court should not reweigh or reevaluate the evi dence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of the witnesses , the weight and value of th e evidence, as well as all factual issues raised by the evidence are resolved by the tri er of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On6

the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as a ll reasonable and legiti mate inferences which may be drawn from the evidence. Cabbage , 571 S.W.2d at 835.

The defendant challenges the sufficiency of the evidence by sayi ng “the state could

present no c

orroborati on of the vic

tim’s stor y, nor coul d it overc

ome the testimo ny of t he accus ed.” This court should not r eweigh or reeval uate the evidence. Matthews , 8 05S. W. 2d a t 779. The jury obvious ly accredited the testi mony of the victim and discredited the testimony of the defendant. The defendant admitted pushing the vic tim. In the light most favorable to the state, the defendant “intentionally . . .cause[d] bodily injur y to another” by shoving the victim such that she fell and injured her ear and nose. Tenn. Code Ann. § 39-13-101(a)(1) (1997). Therefore, the evidence sufficiently supports the defendant’s convi ction for misdemeanor assault.

B.

The defendant contends that there is no pr oof in the record that the trial judge performed his duty to act as the thirteenth juror. See Tenn. R. Crim. P. 33(f). In a criminal case, the trial judge has a mandatory duty to independently weigh the evidence to determine that it conforms witha jury’s verdict. See State v. Carter , 896 S.W.2d 119, 122 (Tenn. 1995). In Carte r , the Tennessee Supreme Court described the standard of appella te review for the issu e of whether a trial judge has acted as the thirteenth juror:

[W]hen the trial judge s imply overrules a motion for new trial, an appellate cou rt may pres ume that the trial judge has served as the thirt eenth juror and ap proved the jury’s verdic

t. Nonethe less , where the record contains statemen ts b y the trial judge ex pressing dissatisfaction or

dis agreement with the w eight of the evidence or the jury’s verdict, or st at ements indicating that the trial court absolved itself of its responsibility to act as the thirteenth juror , an appellate court may7 reverse the trial c

ourt’s judgment. Id. (citations omitted). In this case, the trial judge overruled a moti on for a new trial
a nd there is no evidence of any statement s made by the

trial judge at any tim e which would indicate disag reement with the jury’s verdi ct. Therefore, we may presu me that he fulfilled his duty as the thirteenth juror and appr oved the jur

y’ s verdict.

However, the defendant argues t hat this court is precl uded from presuming that the trial judge fulfilled his duty as the thirteenth juror because there is no transcript of the hearing on the mo tion for a new trial. The Tennes see SupremeCourt stated that the trial judge does not have to explic itly s tate on the
re cord approval of the jury’ s verdict. See id. at 120. Accordingly , the l ack of a record is not relevant for this determination. In the absence of any indication in the statementof evid en ce that the trial judge affirmatively abdicated his role as the thirteenth juror

or expressed dissatisfacti on with the weight of the evidence, the trial judge’s denial of the motion for a new trial is the only relev

ant information needed to presume that he fulfilled his duty as the thirteenth juror.

III. Prosecutorial Misco nduct The def endant contends that there was prosecutorial misconduct in the following actions: (a) eliciting testimony regarding the defendant’s his tory o f violence in his relationsh ip with the victim, (b) d uring voir d ir e , continuously using the term “domestic violenc e,” and (c) during voir dire , telling the jury to assess the defendant’s credibility by the fact that he had a strong int erest in the outcome of the
case. To establish a claim for pros ecutorial miscond uct, the defend ant must prove that the “improper conduct could have affected the verdict to th e prejudice of th e defendant.” Harrington v. State , 385 S.W.2d 758, 759 (Tenn. 1965)3 This rule states as follows: (b) Other Crimes, Wrongs, or Act s. -- Evidence of other crimes, wrongs, or acts is not admissi ble to prove the character of a per son in order to show action in conform ity with the characte r trait. It may, however, be admissibl e for other purposes. The conditions which must be satisfied before allowing such evidence are: (1) The court upon request must hold a hearing outside the jury’s pr

esence; (2) The court must determine that a material issue exists other than conduct conforming with a charac ter trait and must upon request s tate on the record the material issue, the ruli ng, and the reasons for admitting the evidence; and (3) The court must excl ude the evidence if its probative value is outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b). 8

A. Testimony of the Defendant’s History of Violence The defendant contends that the prosecutor should not have elicited certain statements fr

om the victim implying that the defendant had abused the victim in the past. The defendant argues this prosecutorial misconduct was used to bolster the state’s “weak” case by placing inadmissible evidence before t he jury. The defendant claims this is inadmi ssible evidence of other crimes, wrongs, or acts, which is governed by Tennessee Rule of Evidence 404(b). 3 The defendant filed a pre-trial motion for the state to provi de notice ofthe use of evidence of other crimes, wrongs, or acts. Defense counsel stat ed on the record tha t no notice had been given by the stateto use such evidence. The prosecutor announced that the s tate did not intend topresent evidence of other crimes, wrongs, or acts. The trial judge ordered the state to appro ach the be nch before presenting any 404(b) evidence during trial. When defense counsel objected to certain testimony for lack of a jury out hearing as ordered pre- trial, the trialcourt overruled the obj ection and allowed the testimony.9 The objectionab le testimony was: (1) the victi m “ ha d seen that look before,” (2) the victim “knew there would be an altercation, ” (3) the defendant and the victim “h ad problems in the past,” and (4) the victim “knew there would be a fight, verbal or physical.”

Generall y, char acter

evidence is inadmissible to prove action in conformity

with the character or trait on a particula r o ccasion. Tenn. R. Evid. 404(a). However, charact er evidence is admissi ble for othe r purposes if it is relevant and has probative valu e wh ich is not substantially outweighed by unfair prejudice. Tenn. R. Evid. 4 01- 403. The standard of review applicable to the decision to admit evidence is abuse of discretion. State v. Dubose , 953 S.W.2 d 649, 652 (Tenn. 1997); State v. Baker , 785 S.W.2d 132, 134 (Tenn. Crim. App. 1980). When the evidence falls within Rul e 404(b), the standard of revi ew is the
same if the trial judge has substantially complied wi th the procedural requir ements of the rule. Dubose , 953 S.W.2 d at 652 . However, if the tr ial judge does not substantially comply w ith the p rocedural requirements of Rule 404(b), then no deference is given to the t rial judge’s decisi on. Id.

In order to determ ine which evidentiary rule or rules apply, we must
assess the nature of the testimony offered. The parties ar e not disputing the rele vance of the evidence. The defendant and the state treated this evid ence a s 404(b) evidence of other crimes, wrongs, or acts.

Whether these statements were evidence of other crimes, wrongs, or acts under Ru le 404(b ) or were statements of g eneral character eviden ce under Rule 404(a), the statements fall within the general rule of admissibility in Tennessee that eviden ce of the defe ndan t’s prior violent actions or threats against the victim
are admissible to show intent or state of mind of the accuse d. S ee State v. Ray ,10

880 S.W.2d 700, 704 (Tenn. Crim. App. 1993); State v. Glebock , 616 S.W.2d 897, 905-06 (Tenn. Crim. App. 1981); Hull v. State , 553 S.W.2d 90, 93 (Tenn. Crim. App. 1977). Such prior violent “relations [between the parties] indicate hostility toward the victim and a settled purpose to harm or injure her.” Glebock , 616 S.W.2d at 905. The statements tend to show, as the state argues in its b rief, that the injuries to the victim were not

accidental. We find that the trial judge did not err in admitting these statements. Beca use t he statements were admissib le, there was no prosecutorial misconduct in eliciting the statements.

B. Use of Phrase “Domestic Violence” The defendant contends that t here was prosecutoria l misconduct during voir dire

when the prosecutor conti nually used the phr ase “dom estic violence.”

The prosecuto r asked p otential jurors “if they felt it was proper for the state to get invo lved in domestic violence cases,” and “if domestic violence defendants should be treate d more leniently than str angers in assault cases .” Defense counsel objected and the trial judge sust ained the objection, instruc ting the prosecutor

to discontinueus e of the phrase and refer only to “ assaults.” The prosecutor

continued to use the

phrase “domestic viol ence.” The defendant argues that the jury became prejudic ed against the defendant because of these remarks. The state argues that these remar ks did not affect the outcome of the case.

To determine whether prosecutorial misconduct affect ed the verdict to the prejudice of the defendant, five factor s should be consider

ed. T he five factors to be considered are:

(1) [t]he conduct complained of view ed in context andin light of the facts and circumst ances of the case, (2) [t]he curative measures undertaken by the court and the prosecution, (3) [t]he intent of

the prosecutor

in making the improper11 statement, (4) [t]he cumulative effect of the improper condu ct and any other errors in the record, [and] (5) [t]he relative s

trength or weakness of the case. Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

The first factor

requires viewing the conduct in context. In this case, the context of the a lleged miscondu ct was during voir dire . The purpose of voir dire is to inform counsel of a juror’s qualification, i nterest an d possible bias. State v. Onidas , 635 S.W.2d 516, 517 (Tenn. 1982). “[The] proper fiel ds of inquiry include the juror’s occupation, habits, acquaintanceships, associations and oth er factors, including his experiences, which will indicate his freedom from bias.” Id

. (qu oting Smith v. State , 327 S .W.2 d 308, 318 (Tenn. 1959) (citations omitted)). In this context, the questions regardi ng domestic violence s eem to have b een asked to determine if there was

any bias among potential j urors. However, the continued use of the phrase domestic violenc e may not have been proper.

The curati ve meas ures take n by the tri al judge wer e not ef fective because the prosecutor continued usi ng the phrase after being in structed to use the phrase “assault” instead of “domestic violence.” The intentof the prosecutor is not clear. However, we c

annot conclude, as the defendant has, that the prosecutor intended to inflame the passions of the jury and prejudice the jury against the defendant simply by using the phrase “domestic viol ence. ” T he prosecutor, by referring to the problem of domestic violence,may have been appealing t o the jury to act as the community conscience. Appealing to the jury to act asthe community conscience is notnecessarily prosecutorial misconduct. See State v. Pulliam , 950 S. W. 2 d 360, 368 (Tenn. Crim. App. 1996). However, the prosec utor should not have disobeyed the trial ju dge’s order to disconti nue using the phrase “domestic12

violence.”

The factor re garding the cumulative effect of the use of “domestic violence” with other errors does not need to be considered becaus e we find no other
errors. The last factor, the relative strength or weakness of the case, weighs in favor of the state. Alth ough the state’s entire case consisted of the victim’s testimony

and another witness’ testimony, if the jury believed these witnesses, then the case was strong and s olid ag ainst the defendant. The “domestic v iolence” comments did not e nhan ce the state’s case. Accor dingly, we find that the continuous use of the phrase “domestic v iolence” di d not c onstitute prosecutorial misconduct in this case becau se the comments did not affect the verd ict.

C. Comment on the Defendant’s Credi bility The third instance of alleged pr osecutorial misconduct w as during the prosecutor’s voir dire

examinat ion of the jury pool. The prosecutor asked the potential jurors “if they

could take into

account that the defendant in a criminal case has an interest in the ou tcom e of the case when considering the defendant’s credibility.”

The trial judge overruled defense counsel’s objection to this comment
once the state respond ed that “they were not saying the defendant was n ot to be believed

. ” The defendant argues that this comment r esulted in prejudice to the defendant and the judicial process as a whole.

The context of this comme nt was during voir dire . As stated above, the purpose

of voir dire is to assess the potential jurors’ qualificatio ns, interests and possible biases. Voir dire is not the context in w

hich to inform potential juror s about credibility issues. Usually the trial judge will instruct jurors about credibili ty issues afterthe trial has begun, n ot during voir dire . Neither the trial j udge nor the prosecutor

undertook

curative measures. The intent of the prosecutor is not clear,13

but we find no intent to prejudi ce the defendant by this comment. The cumu lative effect is not an issue because there are no other err ors. As stated above, the state’s case was relatively strong. “[The pro secu tor] was merely prono uncing a profound truth which the trial jurors already knew if they were giving careful att ention to the issues.” Shelton v. State , 479 S.W.2d 817, 82 0 (Tenn. Crim. App. 1972). Consideringall the factors, we find that this comment did not constitute prosecutorial misconduct.
IV. Sentencing

The defendant challenges the sentence impose d as exce ss ive and arguesthat immediate probation should hav e be en granted. In determining whether the trial court has properly sentenced an individual, this court engages in a de novo review of the record with a pres umption t hat the tr ial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997). In conducting our de novo review, we must consider the ev idence at sentencing, the presentence report, the sentencing principles, the argument s of counsel, thestatements of the defendant, the nature and characteristics of th e offense, any mitigating and e nhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code Ann. § 40-35- 210(b) (Supp. 1998); Tenn. Code Ann. § 40-3 5-103(5) ( 1997). On appeal, the appellanthas the burden of showing that the sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comme nts (1997).

In felony sentencing, the trial court has an affirmativ e duty to state

in the record , either oral ly or in writing, which enhancement and mitigating factors it found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); Tenn.Code Ann. § 40-35-2 10(f) (Supp. 1998); State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998). In contrast, the misdemeanor sentencing statute only requir

es that the trial court consider

the enhancement and mitigating factors w hen calculating the14

percentage of the sentence to be served "in actual confinement" prio r to "consideration for work re lease, f urlough, trusty sta tus and re lated reh abilitat ive programs." Tenn. Code Ann. § § 40-35-302(d) (1997); Troutman , 979 S.W.2d at 274.

In determining whether to grant probation, the judg e must c onsider the nature and circumstances of the offe nse, the defendant’s criminal record, his background and social history, his present condi tion, including his phy sical and mental condition, the deterrent effect on other criminal activ ity, and the likelihood that probation is in the best i nterests of both t h e public and the defendant. Stiller
v. State , 516 S.W.2d 617, 620 (Tenn. 1974). The defendant bears the burden o f establishingsuitabil ity for p robation, even when the defendant is presumed to be eligible for probation. See Tenn. Code Ann. §§ 40-35-303(a)-(b) (1997).

At the sentencing hearing, defense counse l pre sented evidence of the defendant’s work hi story, military backg round, educational backgroun d, and volunteer

work. His cr imi nal recor d consist ed of th ree prior o ffense s, two convictions

from the late 1970s and one federal conviction. One of the convictions from the late 1970s was for assau lt , but there is no evidence regarding the circumstances of that convi ction.

We review the trial

court’s decision with a presumption of correctness. The trial judge stated his concern about the defendant’s “f ailure to recognize his responsibilit yfor t his conduct.” The trial j udge considered the defendant’s pr ior criminal history but found little significance in two of the previous convicti ons. The onlyconviction the trial judge found to be significant was a twenty year old assault conviction.15 The Tennessee Supreme Court has stated that “ there is norule in this State requiring a Defendant to admit his guilt in order to seek probation.” State v. Bunch , 646 S.W .2d 158, 160 (T enn. 1983) (citi ng State v. Gautney , 607 S .W.2d 907, 910 (Tenn. Crim. App. 1980)). The Bunch court held that reversal would be required if the sole basis for a trial court’s denial of probation was that the defendant did not admit guilt. Bunch , 646 S.W.2d at 160. The defendant arguesthat reversal is required here because his failure to admit guilt wa s the sole basis for denial of probation. We disagree.

In denying probation, th e trial judge mad e findings regarding the nature and circumstances of the offense, the defendant’s prior criminal history, and the defendant’s potential for rehabil itation. The defendant has failed to carry the burden of establishing immediate probation suitability in the trial court a nd on appeal. From our

review of the

sentencing hearing tr

anscript, we find that the t rial judge properly order

ed a short period of incarcer ation.

In consi deratio n of the foregoing, the judgment of the trial court is affirmed.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________ GARY R. WADE, PRESIDING JUDGE

_______________________________ JOHN K. BYERS, SENIOR JUDGE16