### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON September 9, 2003 Session
STA TE O F TE NN ESS EE v . LEO NA RD FR AN KL IN Direct Appeal from the Criminal Court for Shelby County

No. 0006441 W. Fred Axley, Judge

No. W2002-03008-CCA-R3-CD - Filed October 30, 2003

A Shelby County

jury convicted the de

fendant, Leonard F

ranklin, of simple assault. The trial court sentenced him to seven months in the Shelby County Correctional Center with sixty da ys incarceration followed by

eleven months and twenty- nine days proba tion. On appeal, the defendant contends the trial court erred in: (1) deny ing the defendant’s motion for a continuance; (2) limiting the defendant’s cross-examination of the victim concerning her civi l lawsuit

against him; (3) admitting evidence of the defendant’s suspension f rom his pla

ce of employme

nt; (4) improperly commenting on the evidence; and (5) i mposing a period of confine ment. We reduce the probationary term to ten months but other wise aff irm the jud

gment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified; Remanded
J OE G. R ILEY , J., deliv ered the op inion of the court, in which G ARY R. W ADE , P.J., and J ERRY L. S MITH , J., joined.
Mic hael F. Rafferty

(on appeal), James R. Garts, Jr. (on appeal), and Jeff A. Crow, J r. (at tr ial) , Memphis, Tennessee, for the appellant, L eonard Franklin.
Paul G. Summers, Attorney Gene ral andReporter; Kathy

D. Asling er, Assis tant Attor ney Genera l; William L. Gib

bons, District Attorney Gene ral; and Eric Christensen, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
The defendant, an anesthesiologist, was convicted of assault by c ausing b odily injury to Mary Sue Rowland, an employee of the R idgela

ke Amb ulatory Center, on July 26, 1999. James Pike, the Clinical Director of the center, t est ified that during the evening of July 26, he contacted the defendant because a patient requir ed s ur ge ry. Pike stated the defendant arrived at the cente r approxima

tely one and o ne-half

hours later. Whe

n Pike info

rmed the defenda nt that an other pa

tient, Jim Pearl, hadbeen waiting for treatment, the defendant re plied, “I’m the doctor, he’ ll wait another dam[n] hour if I want him to.”-2-

Pike stated that moments later, the defendant approached him and r equested the patient’s medical records. Pike informed the defendant that the victim ha d the key to th e medical records off i ce and gave him the victim’s telephone number. Upon returning from calling the victim, the defendant stated, “ [W]ell, I

guess she’ll get her fat ass up here now.” He further

said, “I called and told her to drop her dam[n] fork and get her fat ass up her e and get me that chart.”
Pike testified that when he saw the victim fifteen to twenty minutes la

ter, she informed him that she had given the key s to Charlotte Dunaway to r etrieve the chart. Pike told her to speak to her daugh ter, Ira Nell Rowland, who was the recovery room nurse, because she had requested to be rel ieved fro m working with the defendant that night. The victim indicated she w ould and then exited the r

oom. Pike stated he then heard the victim screaming for help. He ran into the hallway and observed the defendant standing over the victim, who had “cuts on her eyes.” The victim, who was “crying and bleeding,” stated the defenda nt attempted to “poke [her] in the eyes” and “ blind” her. Pike testified the defendant then came towards the victim, and he moved in between the defendant and t he victi m. Pike stated he never saw the victim raise her hands towar d the defendant or otherwis e attempt to provoke him. He then identified photographs of the

victim which depicted the injuries c aused by

the defe ndant.
Ira Nell Rowland, the victim’s daughter and a registered nurse at the center, testified that on July 26, 1999, w

hile she was s peaking

to two patients, the defendant approached and made several comments about the

victim. The defendant appe ared “v ery agitat ed” and commente d about a c

hart. One of the patients told the defendant that they did not “need to be hearing all this.”
Rowland stated the defendant ret urned to hi s desk and made a telephone call. During the telephone conversation, the defendant loudly stated, “[Y]ou need to put your little forky down and get your fat a ss up here and get this chart.” Rowland testified the defendant then “slammed” down the telephone and beg an “go ing off ” about th e victim. She appr

oached Pike and r

equeste d he obtain a replacement for her for tha t night due to the defendant’s behavior.
Rowland testified that upon returning to a patient, she observed the victim and the defendant engaged in a conve

rsation in the recove

ry area. Rowland wa s able to observe the right side of the victim’ s face and the defendant’s left ha nd. The victim asked the defendant, “[I ]s there any thin g elseI can ge

t you? ” Rowl and testif

ied the de

fendant then beg an “jabb ing” at

the victim ’s ey

es. Prior to the incident, Rowland did not see the victim make any

movements toward the defendant and didnot hear

her y elling a t him. Rowla

nd and Pike

then sepa

rated the defendant fro m the victi m. The defendant moved toward the victim again, but P ike stopped him. Rowland identified photogr aphs of th e victim’ s injuries

. Mary Sue Rowland, the victim and the manager of the outpatient surg ery ce nter, testified that on July 26, 1999, while she was eating di nner at her residence, the defe ndant called her and request ed the ke y to the medical records office. When she aske d the def

endant if she could

finish eating her dinne

r first, t he defe ndant re plied, “[Y ]ou need to

put your little forky

down, get y our

fat ass up here and get me the char t.” The victim stated she then called Dr. Louis Glazer, the-3-

defendant’s supervisor, and informed him of thedefendant’s comments. Dr. Glazer requested she bring the keys to the ce

nter and remind the defendant that he promised he would “behave” during Dr. Glazer’s absence.
The victi m stated sh

e arriv ed at the

center fifteen to twenty minutes later. The victim then gavethe keys to Charlotte Dunaw ay, who worked in the medical records department, and reque sted she retr ieve the chart. Pike then asked her to inform her daughter tha t another nurse was going to relieve her.
The victim testified she saw the d efenda nt standin g in

the hallway with her

daughter. The victim informed the defendant that someone w as retrieving the chart. The victim stated she then app roached

the defe ndant and told him tha

t she nee ded to spe ak to him. Sh e testifi ed th at upo n mentioning Dr . Gl azer, the defendant shoved her with both of his hands with such force that her neck “popped” three to four

times. The

victim stated the

defenda nt then be gan punching her ey es, and she was “blinded” for a moment. She further stated she threw her head back in order to move away from the d

efenda nt.
The victim testified that upon yelling for help, Pike and her daughter arrive d. She stated the defendant continued to move toward her , but Pike stopped him. The victim testified she was not aggressive

toward the defendant and made no derog atory remarks to him. She identifiedher injuries resulting from

the attack in photographs, which were take n the next morning. The victim stated that after the incident, Pike cleaned her wounds, and she went to Dr. Gla zer’s residen ce where s he received further treatment. She also soug ht treatment from another doctor the next morning. The victim tes tified she

had permanent ind

entation s under he

r eyes as a r

esult of th e incide nt.
Jim Pearl testified he was a patient at the cent er on July 26, 1999. He stated that he observed the defendant

and the vi ctim stand

ing clos e to each other. Pe arl furt her stated he was t

en to fifteen yards away a

nd the victim had her back to him. He testified he heard “a pop and another

pop,” and the victim’s head “snapped back” after e ach “pop.” Pe arl stated that although he did not see the defendant strike the v ictim, he “heard what sounded like a hit and her head sna pped back.” He fur ther stated that prior to the incident, he did not hear anyone yelling , and he did not observe th e victim atte

mpt to strik

e the def endant.
Dr. Louis Glazer, C hief Ane sthesiolog ist and Me dical Dir

ector a t the cen ter, test if ied that on July 26, 1999, while at his residence, he received a telephone call from the victim. He stated he instructed th e v ic ti m t o t ak e t he ke ys to the cent er and give the defendant the r ecords which he requested. The victim and her daughter came to his re sidence later that evening. Dr. Glazer stated the victim was crying

and her face was swollen. The victim informed the doctor that while she was speaking with the de

fendant , he atta

cked he r, resul ting in la ceratio ns under b oth of her ey elids.
Dr. Glazer te stified he

examined th

e victim a nd observ ed swelling unde r her ey es and “s ome slits, one under each e ye.” He stated he provided her with an ointment to clean the wounds and ensured she received treatment the ne xt day at an ey

e clinic.-4-

Dr. Glazer testified he confronted the defendant at the center the next morning and informed him that he w as suspen ded until the matter was resolved. When the defendant asked Dr . Glazer whether he wanted to hear his side of the story, the doctor st ated the defenda nt had no ju stifiable excuse for placing his hands on the victim. Dr. Glazer testified the defendant did not deny placing his hands on the victim. The doctor stated that in conducting his investigation, he also spoke to Pike and “a few

other pe ople at the Surge ry Center.” Based u pon his observa

tions and h

is investigation of the inc ident, Dr . Glazer c oncluded the defe ndant str uck the vi ctim.
Sharon Harris, a regi stered n urse at th e cente r, te s tified re gardin g a prio r incide nt. Harr is stated she placed a chart on a desk located near the exit of the recovery room. The defendant began shouting at her in a patient’s presence and acc used her of aband oning a patient. He then p laced hi s hand in front of her face and stated, “I only tolerate y

ou because y ou have cancer. ” Harri s state d sh e t he n b eg an to cr y. Dr. James T. Gaylon, an orthopedic sur geon, testified he performed surg ery on the de fendant on August 21, 1992, in order to repair a tear in his left rotator cuff. He stated that

as a result of the injury and the surgery , the defen dant foun d it difficult to raise his arm and rotate his arm forward and backward

in extreme positions. Dr. Gaylon conce ded he was not familiar with the extent of the defenda nt’s limita

tions on the

day of the July

26, 1999, incident.
Lisa Holiday and Carol Woods testified they saw the victim on the morning after the incident and did not observe any

injuries on the victim’s face.
Charlotte Dunaway , a surg ery tec hnici an at the center, testified that on July 26, 1999, the victim appeared to be “[s]lightly irr itated” and threw the key s to the medical records office at her. Dunaway stated that while walking to the medic al records office, she observed the victim yelling at the defendant in the hallwa y. She further sta ted she never heard the defenda nt yelling and tha

t he did not a

ppear to be upset. Dunaway

testified that when she later saw the victim, she observed redmarks, which appeared to be finge rnail prints, on the victim’s cheeks, but she did not observe blood or bruising on the victim’s face.
The defenda

nt testified that on July

26, 1999, h

e rece ived a telephone c all from the victim , during which the victim used profanity. L ater that same evening, he observed the victim walk out of the rec overy

room at the

center and viole

ntly slam the do or. The d

efenda nt stated t

he victim appeared “very, ve

ry ang ry,” which c oncerned him be cau se he had witnessed the victim’s prior “outburs ts of anger.” The victim then ag gressively approached the defendant and display ed “predatory

malignant behavior.” The def endant st ated the victim ca me at him “almost nose to nose” and moved “in

and out” of his face. He furth er state d the vict

im raised her lef t hand, and he put his hand up wi

thout exten ding his a

rm. The defendant testified that by using two of his fingers, he “touched”the victim’s face twice under her eye s. He stated the

victim sna

pped her head ba ck as a “reflex and avoidance thing.” The defendant further stated that after he “touched ” th e victim, h

e observ ed two sma

ll indenta tions in the vi ct im ’s ma ke up . T he de fe nd an t t es ti fi ed th e v ic ti m t he n s te pp ed ba ck an d s ai d, “T ha nk yo u , I’ll own you,” and then ye lled for help.1 The defenda nt’s brief refers to the potential witness as “Davi d B lagg.” W e use the spelling that ap pea rs in

the trans cript. -5- The defendant

testifie d he did no t ye

ll at the vi ctim

or push her. He stated he did not intend to cause bodily injury

to the victim and denied causing the vict im’s injuri es as depicted in the photogr aphs.
The jury convicted the de fendant of assault, a Class A misdemeanor. See Tenn. Code Ann. § 39-13-10 1(a)(1 ), (b). T he trial c ourt sent

enced th e defendant to seven monthsi n the Shelb y County Co rr ec ti on al Ce nt er an d r eq ui re d h im to se rv e s ix ty d ays in confinement followed by eleven months and twenty-nine day s probation.

I. DENIAL OF MOTION FOR A CONTINUANCE
The defendant contends the trial court erred in de nying his motion for

a continu ance du e to the unavailability of a mate rial witness. We disagree. A. Trial Proceedings
On the morning of trial, the defendant moved for a continuance due to the absence of witnes s David Black. 1 The defendant

ar gued B lack wa s a mater ial witne ss, whom he

had unsuc cessful ly attempted to subpoena. The defendant stated he had been informe d that Black had been “called up” withthe Army Reser

ves. He requested

a c ontinuance in order to obtain a federal subpoena f or Black. The trial court denied the motion, noting the defendant had many

opportunities to find the witness. During the hear

ing on the

mo tio n for new

trial, the defenda nt argu ed that B lack wa s a material witness because he was present when the incident

occurred. In de

nying the motion for ne

w trial, the trial court noted:
I’m think ing abo ut the number of times that we continued this case because he coul dn’t be located. And when he was located, the number of times we con tinue d the case simply because you couldn’t produce the witne ss. B. Analysis
The decision

whether to gran t a motion for a continuance is a matter of discretion for the trial court, th e denial of w hich will not be overturned on appeal absent a clear showing the trial court abusedits discretion to the prejudice of the defendant. State v. Melson , 638 S.W.2d 342, 359 (Tenn. 1982); Baxter v. State

, 503 S. W. 2d 2 26, 230 (Te nn. Cri m. App . 19 73) . In order to establish an abuse of disc retion, the complaining party must make a clear showing of prejudice a s a result of the continuance being denied. State v. Teel, 793 S.W.2d 236, 245 (Tenn. 1990).-6-

When seek

ing a co ntinuanc e due to

the unava

ilability of a witne ss, the defe

ndant must

file an affi davit allegi ng: (a) the su bstan ce of th e facts the de fendan t exp ects t o prov e thro ugh the unava ilable witness; (b) suff

icient fa cts to esta

blish the r

elevanc e and mat

eriality of th e te st im on y; (c) the admissibility of the testimony , if the witness was available; (d) the non-cumulative nature of the testimony ; (e) the witness’ availability at a later date; and (f) due dilig ence in a

ttempting to obtain th

e prese nce of th e witness

. Sta te v. Zirk

le , 9 10 S. W. 2d 87 4, 88 4 ( Te nn . C ri m. Ap p. 19 95 ) ( ci ta ti on s o mi tt ed ). Ge ne ra ll y, conclusory

allegations or opinions alone are insufficient to suppor t the gran ting of a continuance. State v. B ennett , 798 S.W.2d 783, 788 (Tenn. Crim. App. 1990).
In the case at bar, the defendant’s motion was not ac companiedby a n affida vit setting forth the fa cts which he expected to prove through Blac k’s testimony, sufficient fac ts to establ ish th e relevance and admi ssibility of

the testimony, and Blac

k’s availability as a witness a t a later date. Further, th e d ef

en da nt me re ly a s serted Black was present when the incident occurred and he had been unsuccessful in hi s at tem pt s t o su bpo ena Bla ck. In denying the motion for new trial, the trial cou rt noted the case

had bee n continued on previous occa sions in or der to allow the de

fendant to procure Black a s a witnes s and that such efforts had been unsuccessful. The trial court did not

abuse its discretion in denying the de fendant’s motion for a continuance.
II. CROSS-E XAMINAT ION OF THE V ICTIM
The defenda

nt conten ds the tria

l court e rred in limiting hiscross-e xamination o f the vic tim regarding h er civil l awsuit ag ainst him. He furthe r maintains the tria

l court e rred in r efusing to admit a copy of he

r civil complaint into evidence. We disagree. A. Trial Proceedings
Prior to trial, the state moved in limine to limit evid ence of the victim ’s civil la

wsuit to the cross-ex amination of the victim and to pro

hibit the in

troductio n of an en

large d copy

of the ci vil complain t. The trial court permitted the defendant to question the victim re gardin g the lawsu it during cross-examination, but it prohibited the introduction of any “physical exhibits.” During direct examination, the victim testified she filed a civil lawsuit agains t the defendant on the advice of her at to rn ey. During cross-examination, the victim stated she incurred approxima tely $98.00 in medical expe

nses as a result of the incid ent.
Defens e counsel then attempted to question the victim regarding whether she had received treatment from a psychia

trist or a psychologist as a result of the incident. The trial court h eld a bench confer

ence du ring wh ich defe nse coun sel explained that the vic tim had alleged severe emotional injury in her

civil complaint. The trial court informed defense counsel t hat only “bodily in ju ry” was req

uired to s upport an

assault conviction, and the extent of the victim’s emotional injury-7-

and the amount of medical expenses incurred were civil matters. Defense counsel then indicated, “T ha t’ s f in e. We wo n’ t g o t he re .” Th e t ri al co ur t t he n i ns tr uc te d t he ju ry: Ya’ll understandthis is a cr

iminal ca se. You do n’t worr y a bout what medical b ills we re in cu rr ed . O ka y?
After being further questioned by defense counsel, the

victim acknowledged she filed a civil lawsuit against the defendant for

$500,000. The trial court then gave the following jury instruction:
Sure. Again, ya ’ll don’t n eed to be concer ned abou t some $500 ,000–the

re’s a time when I ’ll tell y

ou about c

redibilit y or believa bility of a witne ss. And pa

rt of that is manner and demeanor on the witness stand, ability to answer the questions that are askedand interest o r lack of in terest in the outcome of the trial , sure. But other than that don’t–don ’t get y our self in a civil mire, that’s across the street over there

. Ok ay? (Emphasis added.) Defense counsel did not question the victim any further. B. Analysis
The propriety, scope , manner and control of the examination of witnesses is within the sound discretion of the trial court. St at e v . H um ph re ys , 70 S.W.3d 752, 766-67 (Tenn. Crim. App. 2001). Absent an abuse of discretion, we will not interfere with such ruling s. State v. H arris , 839 S.W.2d 54, 72 (Tenn. 1992). Th

e scope o f cross- examinatio n extends to “any matter

relevant to any

issue in the case, including

credibi lity .” Tenn. R. Evid. 611( b). A par ty ma y of fer pro of throug

h “cross

examination, extrinsic evidence, or both, that a witness is biased i n favor of or pre judiced a gainst a party or a nother witness.” Tenn. R. E

vid. 616. I

n order t o establish interest or bias, a witness for the state in a

criminal case may

be questi oned reg arding

whether he or she has filed a civil la wsuit agains tthe defendant as a result of the acts invol ved in the criminal case. State v. Horne , 652 S.W.2d 916, 918 (Tenn. Crim. App. 1983).
The defenda

nt maintai ns the tria l court e rred in r efusing to admit a copy of the

victim’s civil complaint into evidence. However , the defendant failed to make an offer of proof regarding the contents of the complaint and failed to include a copy of the complaint

in the app ellate

record. As a result, we are unable to examine the contents of the complaint and deter mine wh ic h p ar ts , i f a ny, were admissible. Accordingly , this issue is waived. See State v. Ro binson , 971 S.W.2d 30, 40 (Tenn. Crim. App. 1997) (noting that if the excluded evidence is not cont ained in, or appar

ent from, the rec ord, the a

ppellate court will not consi der the i ssue). We agree that evid ence tha t the victi m filed a civil lawsuit against the defendant is relevant to establish bias; however , we note the trial court properly pe

rmitted defense counsel to question the victim regarding the lawsuit, and the victim admitted filing the $500,000 lawsuit. Therefore, based on the r ecord bef ore us , we are

unable to discern the rea

l need to i ntroduce

the civil c omplaint i nt o evidence. Regardless, any error was harmless in light of the testimony about the la wsuit. See Tenn. R. App. P. 36(b).-8-

The defenda

nt next con tends the

trial cou rt’s limiting instru ctions to th e jury effec tively restricted the scope of

his cross-examination of the victim regarding the civil lawsuit. However, the defendant failed to object to these instructions at trial. By failing to make a co ntemporane ous objection, a defendant waives appellate consider ation of the issue. Robinson , 971 S.W.2d at 42-43; Statev. Scott M. Craig , No. E2001-01528-CCA-R3-CD, 2002 Tenn. Crim. App. LEXI S 730, at *18 (Tenn. Crim. App. Aug. 27 , 2002, at Knoxville) ; State v. Lon S. Walker , No. 01C01 -9711-CR00535, 1999 Tenn . Crim. App . LEX IS 352 , at *13 (Tenn. Crim. App. Apr. 16, 1999, at Nashville), perm. to app. denied

(Tenn. 1999). More over , in examining the trial court’s limiting instructions in their entirety, we

are unable to conclude the t rial cou rt instructe d the jury

that the c ivil lawsuit was totally irrelevant. Rather , the trial court told the jury the lawsu it could re late to “interest or lack of interest in the outcome of the trial” as a means of determining credibility. This instruction about “intere st or lack of interest in the o u tcome of the trial” was also reiterated in the trial cour t’s final jury instructi ons rela

ting to c redibilit y of the witne sses. The

defenda nt is not en

titled to r eli ef o n this issue.
III. EVIDEN CE OF THE D EFENDAN T’S SUSPEN SION
The defendant

maintains the trial court committed reversible error in permitting Dr. Glazer to testify regar ding his suspension of the defendant following the incident . We disce

rn no rev ersible error. Prior

to trial, the defendant requested that the trial court prohibit the introduction of evidence relating to his suspen sion of em ploy ment follo wing the

incident

. The defendant argued the e vidence was irrelevant; it was based upon hearsay ; and its prejudicial effect outweighed any probative value. The trial court denied the motion, noting the defendant was mer el y suspended and not terminated from his e

mploy ment.
Evidence is re le va nt if

it ha s “ an y t endenc y tomake the existence of any fact that is of c onsequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Once the court c oncludes the evidence is relevant, the court should exclude the evidence if its probative value is substantially outweighed by

its prejudicial effec t. Tenn. R. E

vid. 403; State v. James , 81 S.W.3d 751, 757 (Te nn. 2002). A trial court’s decision as to the relevance of e vidence under Rule 401 will be reversed only upon a showing of abuse of discretion. State v. Powers , 101 S.W.3d 383, 395 (Tenn. 2003).
We conclude

Dr. Glaze

r’s testi mony

regar ding his investig ation of th e in cident a

nd his suspension of the defendant was irrelevant and wa s based upon hearsay information gleaned

from statemen ts made by others to Dr . Glazer. Therefore, the trial court erred

in ad mi tt in g t hi s t es ti mo ny. Regar dless, we conclude such error w as harmle ss . As applicable to the case at bar, one commits “assault” who “[i]ntentionally, knowingly or recklessly

causes bodily

injury to another.” Tenn. Code Ann. § 39-13-101( a)(1). The defendant admitted he “touched” the victim under her ey es. The victim

stated she did not provoke the defendant prior to the incident. I ra Nell Rowland and Jim Pearl testified that prior to the incident, they did not see the victim attempt to strike the-9-

defenda nt. Rowland, Pearl, and James Pike stated they did not hear the victim yelling at the defendant.
Ira Nell Rowland and Pike testified th ey stepped in betwee n the vict im and the

defenda nt, who conti nued to pursue the victim. Dr. Glazer testified heobserved the “slits” under both of the victim’s eyes shortly

after the affray . Pike, Rowland, and the victim identified photographs of the victim’s injuries as those caused by the defendant. Our

examinatio n of these

photogr aphs rev eals swelling and clearly

identifiable red scratches or slits under both of the victim’s ey es. We further note that Dr. Glazer testified he spoke to the victim, Pike, and others during the course of his inve sti gation. We also note the victim, Pike, some of the employ ees, and a patient testified at trial. Dr. Glazer further stated he did not listen to, and thus did not rely upon, the de fendant’s version of the events prior to rendering the suspe nsion. As noted above, at trial, the defenda ntadmitted he “touched” the victim, but he claimed he did so in self-defense . T h e photographs of the vict im’s inju ries, which injuries the jury obviouslyconcluded were not selfinflicted, belie t he de fendant’s claims. In light of these facts and circumstances, we c onclude Dr. Glazer’s testimony about the suspension was ha rmless. See Tenn. R. App. P. 36(b).
IV. TRIAL C OURT’S COM MENTS
The defenda

nt maintai ns th e tr ial court improperly c ommented during trial regarding the credibi lity

of the wit

nesses a nd the evidence, and the improper comments constituted plain error. We disagree. A. Trial Proceedings
At the conc lusion of th

e testimon

y of patient Jim Pe arl, a wi

tness for the state, the following colloquy occurr ed:
THE COURT: Thank you, sir, y ou may step down. You’r e free to go about y

our business. Be car

eful. THE WITNESS: Well, thank you so muc h. I enjoy

ed it, thank you. TH E C OU RT : C om e b ac k t o s ee us so ci al ly. THE WITNESS: I’ll be ha ppy to. THE COURT : Can’t we

all be nic e like tha

t? DEFENSE

COUNSEL : Do what? THE COURT: Why

can’t we all be nic e like th at ? Shakes the man’s hand as he’s le aving. M aybe it’s bee n set so many times he’s on a f irst name basis with the Prosecutor, he calls him Eric. He’s a nice man.
Later durin g t rial, the

defenda nt testified at leng

th rega rding hi s private

practic e and his employ ment ag reemen t with the c enter. D efense counsel t hen inter rupted th e defendant:-10-

DEFENSE

COUNSEL: Doctor Franklin, g oing back to the issues of this case for one minute – THE COURT: Thank you.
On cross-examination, the defendant testified he arrived at the c enter on time on the day of the incident. The prosecutor then questioned the defendant regarding

Pike’s testimony of his failed attempts to contact him. The following colloquy occurred: Q: Had a hard time getting hold of y ou, didn’t he? A: Th at ’s wh at th ey s ay. Q: They ’re ly

ing about that? A: I don’t pre sume to mak e a comme

nt about th at. Q: Are they

mistaken a

bout that? A: I, again, don’ t presume to know what they were doing from their end. THE COURT : Excuse me just a minut

e. I s this the F

ifth Amen dment? DEFENSE COUNSEL: Sir? THE COURT : Is th

is a Fifth Amendmen

t? DEFENSE COUNSEL: No. THE COURT: Well, he’s refusing t o answer on some g

rounds. I f we’re getting into it, I need to ad

vise him of

his righ ts. DEFENSE

COUNSEL : No, y ou’re no t, we’re not. THE COURT: Ask him again.
The defendant then testified he believed Pike was mistaken.
There was no obj ection by defense counsel at trial relating

to the com

ments of th

e trial c ourt, nor was this issue raised in the motion for new trial. Thus, the issue is waived. See State v. Walker , 910 S.W.2d 38 1, 386 (Te nn. 1995) ; Lon S. Walker , 1999 Tenn. Crim. App. LEXI S 352, at *13. B. Analysis
Becau se the issue is waived, we now proceed to determine whe ther there wa s plain error. An error which has affecte d the substantial rights of a defendant may be noticed at any time in the di scretion of the appellate court where nece ssary to do substantial justice. State v. Tay lor , 99 2 S.W.2d 941, 944 (Tenn. 1999). “Plain error” or “fundamental error” is recognized under Te nnessee Rule of Criminal Procedure 52(b). Statev . Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1 994)

. Some err

ors are so fundam

ental an d pervas ive that th ey require revers al without

regar d to the facts or circumstances of the particular case. Delawa

re v. Va n Arsdall , 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986).
There a re five factor s which mus t be pres ent for a court to d

etermine “plain e rror” e xists: (a) the record must clea

rly establish what occ urred in the trial court; (b) a cl ear and

unequivo cal rule

of law mus t have be en brea ched; (c) a su bstantial right of the accused must h ave bee n advers ely

affec ted; (d) the accused did not waive the issue for tactica l reasons; and-11- (e) consideration of the error is “nec essary to do substantial justice.”
Statev. Smith , 24 S.W.3d 2 74, 282 ( Tenn. 2000) (citi ng Adkisson , 899 S.W.2d at 641-42). Complete consideration of all five factors is unnecessary if at least one is absent. Id . a t 283. Furth ermore, the pl ain err or must be

such that

it probab ly c

hange d the outc ome of the trial. Adkisson , 899 S.W.2d at 642.
A trial court

has the inherent power to supervise and control its own court proceedings. State v. Cazes , 875 S.W.2d 253, 260 (Tenn. 1994)

. Howeve r, the tri al court

must take c are not t

o convey to the jury an appe arance of taking sides. See State v. Suttles , 767 S.W.2d 403, 407 (Tenn. 1989); Statev. Brown , 823 S.W.2d 576, 588 (Tenn. Crim. App. 1991). Therefore, the trial co urt is prohibited from comm

enting u pon the cr edibility of a witne ss or upon t

he evide nce pre sented a

t trial. Suttles , 767 S.W.2d at 406.
The defenda

nt conten ds the thr

ee incid ents desc ribed ab ove, as w ell as the trial cou rt’ s instruction to the jury reg arding the victim’s civil lawsuit, effectively denied him a

fair tri al. While we do notcondone

the comme

nts at issue, we are

unable to conclude that the tr ial cour t’s comme

nts affected the

verdict in this hard-fought four-day trial. See Tenn. R. A

pp. P. 36(b ); Tenn. R . Crim. P. 52(a). Accordingly , in examining the record in its entirety , we concl ude the trial court’s comments did not affect the “substantial rights of the accuse d” and consideration of the alleged e rror is not “nec essary

to do substa

ntial justi ce.” Tenn. R. Cr im. P. 52(b) ; Smith , 24 S.W.3d at 282. Therefore, the trial court’s comments do not rise to the level of plain error.
V. SENTENCING
The defendant contends the trial court erred in imposing a sentence of spl it confinem ent. We disagree.
A. Sentenc

ing Hearing
At the sentencing hearing, Mar y Sue Rowland, the victim , testifie d she fel thumiliated and degraded as a res ult of the incident. She state d that af ter the in cident, s he has fo

und it diff

icult to interac t with prof

essional s on a “on

e-on-one” basis

. Betty Conrad testified she has known the defendant for fiftee n yearsand worked for

him at the center. She stated the defendant was “g ood” with his patients. She further sta ted she never exper ienc ed any problems with the def endant, and she was unaware of a ny problems betwee

n the defendant and other employ ees. Conrad testified she was not present when the offe nse occurred.
The defendant testified he was sixty- one yea rs old at the time of the hearing. He stated he graduated from medi cal scho ol at the U niversity of Tenne ssee and

receiv ed his med

ical lice nse in 1969. He a

lso mainta

ined his ow n practi ce, whic h focuse d on the ar

ea of pa in manag ement.
The defendant testified he suffers from chronic congestive heart failure. He stated he was hospitalized in Febru ary

2000 as a

result of his condit

ion, and a

lthough h is condit ion has bee n-12-

stabilized through medication, he is only able to work approximately two hours pe r w eek. Th e defendant testifie d he has a

form of narcolepsy , and due to a prior rotator cuff injury, he

suffers from residual muscle weakness, arthritis, and chronic pain.
The defenda

nt express ed his re gret r egard ing his in

volvemen t in the inc id ent, but he mainta ine d he “had every

right to defend [himself] and suspect injury to [himself].” He stated he could not “assume responsibility for any thing other thandefending [himself].” He further stated he believed he should be acquitted of the charg e. The def end ant tes ti fie d t hat in Feb rua ry 19 97, he w as a rre st ed f or D UI a nd public intoxicat ion and was later convicted of DUI . He stated that in November 1998, he was charg ed with reckles s endangerment with a deadly weapon, and the charge w as later expunged from his record.
In sentencing the defendant, the trial cour t noted the circu mstance s o f the offense were “unique” in regard to the

place where the offense oc curred and the people whowere involved. The court then characterized the offense as one involving violence in the workplac e. I t also noted it consider ed the “d eterre nt effe ct in the me dical co mmunity ” in sente ncing th e defendant.
The trial court sentenced

the defe ndant to se

ven monthsin the Shelby County Correctional Center. The court ordered the defendant to ser ve sixty day s in confinement followed by e leven months and twenty-nine day s probation.
B. Misdem

eanor Sent

encing
Misdemeanor

sentencing is controlled by Tennessee Code Annotated sect io n 40-35-302, which provides in part that the trial co urt shall i mpose a specific sentence consistent with the purpo ses and principles of the 1989 Criminal Sentencing Reform Act. See State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The trial court retains the authority to pl ace the defendant on probation either immediately or a fter a time of per iodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e). We further note that the trial court has more flexibility in misdemeanor sentencing than i n felo ny senten cing. State v. Troutman , 979 S.W.2d 271, 273 (Tenn. 1998). When a defenda nt challe nges the sentenc e, this court condu cts a de novo re view with a presumption the trial court’s determinations are correct. Te nn. Code Ann. § 40-35-401(d).
The defendant

submits the trial court erred in failing to grant judicial diversion. See id. § 40- 35-313(a)(1)(A) (Supp. 1999). However, the defendant failed to request judicial diversion during the sentencing hearing. This issue is waived. See State v. Donnie Thompson , No. M2002-01499- CCA- R3-CD, 20 03 Tenn. Crim. App. LEXI S 178, at *8 (Tenn. Crim. App. Mar. 3, 2003, at Nashville); State v. David E. Smith, Jr. , No. 01C01-9805-CR-00224, 1999 Tenn. Crim. App. LEXIS 573, at **11 -12 (Te nn. Crim. App. June 9, 1999, at Nashville) . Furthermore, according to the presentencereport and the defendant’s testimony , he has a previous conviction for DUI , a Class A misdemeanor. See Tenn. Code Ann. § 55-10-403(a)(1). An accused is eligible for judicial diversion only if he or she “ [h]as notpreviously been c onvicted of a felony or a Class A misdemeanor.” Id. § 40-35-313(a)(1)(B)(i)( c) (Supp. 1999). As a result, the defendant is not qualified to rece ive judicial diversion.-13-

The defendant next maintains the trial court erred in deny ing total probation. The defendant has the burden of establishing suitability f or total probation. Id. § 40-35-3 03(b); Stat e v. Boggs , 932 S.W.2d 467, 477 ( Tenn. Cri m. App. 1996). A defendant seeking total probation bears the bur den on appeal o f showing

the sente nce impos ed is impro

per, and that total probatio n will be in

the best interests of the defendant and the public. State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).
We initially observe that the record does not contain any evide nce that there was a need for “deterrence

in the medical community.” See gen erally State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). Neverth eless, we conclude that thedefendant has not met his burden of establishing his entitlement to total probation. The trial court properly considered the nature and circumstance s of the offe nse in which the

defenda nt, a doct or, atta cked the victim, a f

ellow emp loy ee, during a disp ute while at their place of employ ment in the presence of

fellow employee s and one or more patients. See Tenn. Code Ann. § 40-35-103(1)(B). We further note that while the defendant expressed reg ret regarding his involvement in the incident, he continued to maintain he acted in self-defense. Fur thermore, the defendant’s testimony a

t the sentencing hearing re garding his belief that he sh ould

be acquitted of the charg e nega

tively reflec ts upon his potential for rehabilitation. See id. § 40-35-103(5); see also Statev. Zeol

ia , 9 2 8 S.W.2d 457, 463 (Tenn. Crim. App. 1996) (considering a defendant’s fa ilure to accept responsi bility in determin

ing whe ther to imp ose proba

tion or co nfineme

nt). We als o note the trial court expr essly que stio ned th e defen dant’ s credi bili ty at the h earing. See Statev. Nunley , 22 S.W.3d 282, 289 (T enn. Crim . App. 1999) (holding untruthfulness is a proper consideration). The tria l court wa s in a much better p osition tha

n this cour

t to make th

is determ ination. M ost si gn if ic an tl y, we also note the defendant had a prior cr iminal conviction for D UI about four teen months befo

re th e inst ant o ffen se. We

are unable to conclude the trial cou rt erre d in imposing

sixty days of inca

rceration. C. Illegal Sentence
The defendant was convicted of assault by causing bodily injury , a Class A m isdem eanor. See Tenn. Cod

e Ann. § 39 -13-101( a)(1), (b). The maximum term

of impriso nment f

or a ClassA misdemeanor is eleven months and twenty-nine days. Id. § 40-35-111(e)(1). I n State v. Watkins , 972 S.W.2d 703, 705 ( Tenn. Cri m. App. 199 8), this c ourt held a defendant, who was convicted of a Class A misdemeanor and was entitled to five months and eight day s of jail credit, could not receive a probationary

term of eleven months and twenty-nine day s. See also State v. V ito Summa , No. 02C01-9411-CR-00254, 1995 Tenn. Crim. App. LEXI S 1001, at **6-7 (Tenn. Crim. App. Dec. 28, 1995, at Jackson). Thus, a trial court may not impose upon a Class A misdemeanant a peri o d of probation which, when combined with the time of confinement, exceeds eleve n months and twenty-nine day s. Watkins , 972 S.W.2d at 705.
In the case

at bar, t he trial c ourt sent

enced th e defendant to seven monthsin the county jail and or de re d h im to se rv e s ix ty d ays of th at se nt en ce fo ll ow ed by eleven m onths and twenty-nine da ys probation. We con clude the tria l court erred in imposing a sentence bey ond the authorized maximum term of eleven months and twenty-nine day s. Therefore, we reduce the period of probation to ten month s.-14- VI. CONCL USION
In summary, we reduce the ter m of probation to ten months and remand for entry of a corrected judgment reflecting this modification. We otherw ise affi rm the judg

ment of the

trial cou rt.

____________________________________ JOE G. RILEY, JUDGE