# FILED
April 28, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SE SSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9711-CC-00502

) ) Rhea County v. ) ) Honorable Buddy D. Perr y, Judge ) ROBERT PATTON ) (Assault) a/k/a RED PATTON, ) ) Appellant. )
For the Appellant : For the Appellee : Philip A. Contra John Knox Walkup District Public Defender Attorney General of Tennessee and and Jeffrey Harmon Clinton J. Morgan Assistant Public Defender Assistant Attorney Gener al of Tennessee 200 Betsy Pack Dr. 425 Fifth Avenue North P.O. Box 220 Nashville, TN 37243-0493 Jasper, TN 37347 James Michael Taylor District Attorney General and Will Dunn Assistant District A

ttorney General 265 Third Avenue Dayton, TN 37321

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Robert Patton a/k/a “Red” Patton, appeals as of right following his conviction by a jury in the Rhea County Circuit Court for assault, a Class A misdeme anor. He wa s original ly sentenc ed to ele ven month s and twen ty-nine da ys confinement, however the tr ial court modified the sentence to six months confinement in the Rhea County Jail,with the remainder suspe nded. On appeal, the defendant contends that (1) the trial court erred by allow

ing into evidence ir

relevant and prejudici al testimony regarding the reaction of young children who witnessed the altercation in issue and (2) the trial court erred by not comply ing with the sentenci ng statutes and by not ordering a sentence alt ernative to confinement. We affirm the judgment of conviction.

The defendant’s conviction stems from events o ccurring at Teddy Smith’s home. The defendant went to Mr. Smith’s home in search of his girlfriend, Janie Douglas, in order to r

etrieve keys to his

trailer from Ms. Dougl as. When Mr. Smith asked the defendant to leave, an altercation en sued. The defendant claimed that Mr. Smith started the altercatio n, however witnes ses for the state testified that the defendant started the altercation. In any event, a fight ensu ed, and the defendant was arrested. At trial, four w itnesses testified that the defendant hi t Mr. Smith.

I. ADMISSION OF IRRELEVANT A ND PREJUDICIAL TESTIMONY The defendant first contends that the tri al court erred by all owing into evidence testimony from state’s witnesses regarding the reaction of several small children who witn essed the altercation. He c ontends that the evidence is irrelevant and prejudicial. See Tenn. R. Evid. 401, 403. The stat e argues that the defendant did not3

properly object to the testimony at trial and that the admission of the evidence is harmless in light of the other proof against the defendant.
According to Rule 401, Tenn. R. Evid., evidence i s relevant if it has “an y tendency to make the exist ence of any fact that is of consequenc e to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence may still be excluded “if its probative value is substantially outweighed by the dang er of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Tenn. R. Evid. 403. The trial cour t has discretion in determi ning whether evidence meets the test for rel evancy. State v. Forbes , 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). Assessing the probative value and danger of unfair prejudice regarding the evid ence also falls within the trial court’s disc retion. State v. Burlison , 868 S.W.2d 713, 720-21 (Tenn. Crim. App. 1993). This court will only reverse a trial court’s decision if the trial cour t abused its discretion. State v. Williamson , 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).

The evidence the defendant contests relate s to the testimony of state’s witnesses regardi ng the reaction of several small children who w

itnessed the fight. The state asked three witness es to describe the reaction of the children, and the witn esses stated that the children were screaming and crying and were scared. The record reflects that the defendant’s attorney objected to the testimony on the basis of relevance, but the trial

court overruled the obj ection.
We agree with the defendant that the evidence is irrelevant. In fact, the trial court acknowl edged as much during the moti on for a new trial. How ever, the error is harmless in light of the other evidence presented against the defe ndant, which included four witnesses t estifying that the defendant attacked the victim. T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a).45 II. SENTENCING The defendant contends that the trial court did not comply with statutory sentencing procedures and th at the trial court erred by denying sentenci ng alternatives. Specifically, he argue

s that the trial court di d not state on the record its consideration of relevant sentencing principles, including enhancement and mitigating facto rs. He also argues that a sentence order ing him to pay a fine or r estitution, a suspended sentence, a split sentence or wor k release would be more app ropriate. The state contends that the defendant was properly sentenced.

Appellate review of misdemeanor sentencing is de novo on the record with a presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35- 401(d), -402(d). As the Se ntencing Commission Comments t o T.C.A. § 40-35-401(d) note, the burden is now on the appealing party to show that the sentence is improper. We note that the law provides no presumpt ive minimum for misdemeanor sentenc ing. See , e.g. , State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in misdemeanor sentencing, the tr ial court must consider the purposes and principles o f the Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(d).

At the sentencing hearing , the defendant testified that he was employed by Straight Line Mas

onry Company and Goodman’s Air Conditioning. He testified that he had not had any trouble with the victim since the offense. He assured th e trial court that if he received probatio n, he would meet with hi s probation officer and comply w ith any requests made of him.

A presentence report was introduced into evidence. It reflects that the defendant has nine prior misdemeano r convictions for such offenses as public intoxication, disorder

ly conduct, marijuana poss ession, driving on a suspended license, and driving on a rev

oked license. At the conclus ion of the sentencing hearing , the trial6

court sentenced the defendant to elev en months and twenty-nine days confinement. At the motion for new trial hearing, however, the trial court modified the defen dant’s sentence to six months confinement with the remainder suspende d.
Upon a review of the rec ord, we believe that the trial court complied w ith the sentencing statutes. See State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998) (“while the better pr

actice is to make findings on the record when fixi ng a percentage of a defendant’s sentence to be serv ed in incarceration, a tr ial court need only cons ider the principles of sentencing and enhancement and mitigating factors in order to comply with the legislative mandates of the misdemeanor sentencing statut e”). The record shows that the trial court considered the defendant’s lengthy criminal history, which included nine misdemeanor conv ictions. This criminal

history more than justi fies the defendant’s sentence and the manner in w hich it is to be serv

ed. We believe that the defendant has failed to demonstrate that the t rial court’s sentence i s erroneous.

In consideration of the foregoing and the record as a whole , the judgment of conviction is affirmed.

__________________________ Joseph M. Tipto n, Judge
CONCUR:

_________________________ Gary R. Wad e, Presiding Judge

_________________________ David H. Wel les, Judge