### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs O ctober 29, 2002 STATE OF TENNESSEE v. RICHARD ALAN HAWK INS Direct Appeal from the Criminal Court for Ham ilton County No. 236534 Stephen M. Bevil, Judge

No. E2002-01095-CCA-R3-CD December 27, 2002
A Hamilton County jury

convicted the defendant, Richard Alan H awkins, o f assaul t, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and twenty-nine day s in the county workhous e to be served at 75%. In this appe al, the defendant raises the following issues: (1) whether the state ’ s witnesses violated the rule of sequestration, and (2) whether the defendant’s sentenc e is exces sive. We a ffirm the judgmen t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBER T W. W EDEMEYER , J., joined. Brya n H. Hoss (on ap pe al ) a nd Llo yd A. Le vitt (at tr ial), Cha ttanoog a, Tenne ssee, fo

r the app ellant, Richard A

lan Hawk ins. Paul G. Summers, Attorney Gene ral and Reporter; Angele

M. Greg ory , Assistan

t Attorne y General ; William H. Cox, I

II , Distric t Attorne

y General ; and Ruston

L. Hill, Assista

nt D istrict Attorney General, for the appellee, State of Te nnessee.

OPINION Kasey Ieng, the victim, testified that on January 17, 2001, while dri ving on H ighway 153 in Hamilton County, the defenda nt drove up to her ve h icle and closely f ollowed her. The defendant then passed Ieng

and cut his car in front of her car. I eng stated she almost wrecked he r car a s a result, and she blew her horn at the defenda nt. Ieng testified both she and the defendant took the next exit off the highway . She stated the defenda nt, who was in front of

her, then began to periodically apply his brakes. The

defendant

then stopped his vehicle in the middle of the exit ramp. The defendant approached I eng’s car, which was parked behind his vehicle. The parties then beg an to “cuss” each other. I eng stated the defendant-2-

reached into her

car, grabbed her by

the neck, and choked her. The defe ndant then grabbed I

eng’s face and pushed her into her seat. He also struck her across her cheek with his open hand. Gary Pay ne testified he drove up to the two cars parked in the middl e of the e

xit ramp and stopped his vehicle because he could not drive around them. Pay ne stated he saw the defendant reach into Ieng’s ca

r, and it appeared the defendant hit I eng. Upon seeing Pay

ne, the defendant left the scene in his vehicle. Payne testified that after

the defendant

left, he approached I

eng’s vehicle and asked her if she suffered any injury . Ieng said, “ He hit me in my face .” Payne then entered his vehicle and chased the defendant. When he caught up to the def endant , Payne wrote down the tag number of the defendant’s vehicle. The defenda nt was subsequently ar

rested. Ieng te stified that after the incident, both her face and neck were red. She also receive d injuries to her neck and went to the emerge ncy room. The jury convictedthe defendant of assault. The trial court sentence d him to eleven months and twenty-nine da

ys in the county

workhouse to be served at 75%.
RULE OF SEQ UESTRATION The defendant contends the state ’s witnes ses viola ted the r ule of seque stration d

uring tr ial. Sp ec if ic al ly, the defendant alleges Pay ne, Ieng, and the

prosecutor discussed the case in the hallway prior to Payne’s taking

the stand. The defendant failed to include this issue in the motion for new trial. Therefore, this issue is waived. Tenn. R. A

pp. P. 3(e ); see State v. Walker , 910 S.W.2d 381 , 386 (Tenn. 1995). Furthermore, we envision no plain error. See Tenn. R. Crim. P. 52(b).

SENTENCING The defendant contends the sentence imposed by the trial court is excessive. We disagree. When imposing a sentence for a misdemeanor, the trial cour t must allow the part ies a reasona ble opportunity to be heard r egardingthe leng

th of the s entence

and manne

r in which it is to be served. Tenn. Code Ann. § 40-35-302(a). The trial court must specify the length of the sentence in months, days, or

hours. Tenn. Code Ann. § 40-35-302(b). I t should also specify a pe

rcentage of the sentence which

must be served by the de fendant before eligibility

for “work release, furloug h, trusty status and related r ehabilitative programs.” Tenn. Code Ann. § 40-35-302( d).-3-

Unlike a felon, a defendant convicted of a misdeme anor enjoys no pre sumption of a minimum sentence. State v. Hu mp hr eys , 70 S.W.3d 75 2, 768 (Te nn. Crim. A

pp. 2001) . Still, the trial court should consider enhancement and mitigating fac tors, the p urposes of the Criminal Sentencing Reform A ct of 1989 , and ge neral se ntencing principle s in imposin g the sentence and should not arbitr arily set the percentage to be ser ved in actual confinement. Tenn. Code Ann. § 40- 35-302(d). Although it would be a better practice for the trial court

to make findings on the record wh en se tting the percentage, ther e is no requirement that the trial court do so. State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998). When adefenda nt challe nges the sentenc e, this court condu cts a de novo review with a

presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d).
In the case

at bar, the trial court sentenced the defe ndant to eleven months and twenty-nine da ys in the county workhouse to be served at 75%. The trial court sta ted that in determin ing this sentence, it relied

upon the e

vidence present ed at tria l, the defe ndant’s s ix prior convictions, and the defendant’s explanatio n rega rding hi s recor

d. In requiring the de

fendant to serve 75% of his sentence in confinement, the trial court found the defendant committed the crime out of anger. The trial court also found the defendant had previously been sentenced to eleven months and twenty-nine da ys in the workhouse, w hich did no t s erve to de ter h im fr om co mmitti ng ot

her o ffen ses. We conclude the trial court properly considered the circumstances of the case and t he sentencing principles in determining the defendant’s sentence

. Under the 1989 Sentencing Act, sentences which involve confinement

are to be based on the following considerations contained in Tennessee Code Annota ted section 40-35-103(1): (A) [c]o nfine ment i s neces sary to pr otect socie ty by restrai ning a defenda nt who has a long h

istory of crimin al conduct; (B) [c]onfinement is necessary to avoid de

precia ting the seriousness of the offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or ( C) [m]easures less restrictive than confinement have frequen tl y o r recent ly b een app lied unsuc cessful ly to the defe ndant. Statev. Grigsby , 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps , 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
In this case, the first cons ideration, “[c]onfinement is necessary to protect society by restraining a defendant

who has a long history

of criminal conduct,” applies. See Tenn. Code Ann. § 40-35-10 3(1)(A) . The def endant ha s six prio r convic tions, including two convictions for aggravated

burglary , three convictions for theft of property, a

nd one conviction for

fraudul ent use of a credit card. T

herefo re, the d efenda nt’s prior record is extensive

so as to qualify

under the first consider ation for confine ment.-4-

Confinement

is also necessary

in order to avoid depreciating the seriousness of the offense. Se e Tenn. Cod e Ann. § 40-35-103(1)(B). The trial cour t found that the defendant committed the assault out of ang er. The

trial cou rt also recognize d the gr

owing pr oblem of “roa d rage” and the dangers it poses. We also note, as did the trial court , t hat the defendant committed some of his six prior offenses while he was out on bond for other offenses. Further, the def endanthad served an elevenmonth, twenty -nine-d ay

sentenc e in the count

y w orkhouse

prior to committing the instant offense. Nothing has deterred the defendant from c ommitting other offenses. Therefor e, the tr ial court properly orde

red the defendant to serve his sentence in the c ounty workhouse at 75%. We affir m the judg ment of the

trial cou rt.

____________________ __ ________________

_ JOE G. RILEY, JUDGE