# FILED January 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE NOVEMB ER SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9608- CR-00381 ) Appellee, ) ) ) PUTNAM COUNTY VS. ) ) HON. LEON BURNS,JR. TOMMY GENE CLINTON, ) JUDGE ) Appe llant. ) (Assau lt)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF PUTNAM COUNTY FOR THE APPELLANT : FOR THE APPELLEE : H. MARSHAL L JUDD JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 215 Reagan Street Cookevill e, TN 38501 DARYL J. BRAND Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 BILL GIBSON Distri ct Attor ney General JOHN NISBE TT Assistant Distri ct Attor ney General 145 South Jeffer

son Avenue Cookevill e, TN 38501
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code Ann. § 39-13-1 01. -2- 

# OPINION

This is an appeal as of ri ght pursuant t o Rule 3 of the TennesseeRules of Appe llate Proced ure. The Defendant was convi cted on a jur y verdic t of the offense of assau lt. 1 The jury i mposed a fine of t wo-thousand five hundred do llars ($2500). The trialjudge sentenced t he Defendant to el even months and twentynine days in thecounty jai l, wit h seven ty-fi ve pe rcent (75%) to be served. The Defendant appeals hi s convict ion and his sentence. We affirm the judgment of the trial cou rt.

The Defendant does not challenge t he suf ficien c y of the conv icting evidence, so we address the facts o nl y brief ly. On June 19, 1994, same being Fathe r’s Day, a group of f amily me mbers had gathe red at th e Def enda nt’s father ’s hous e to commemorate the occasi on. Late th at afternoon, the Defendant arrivedat the house, apparently in a foul mood. An altercation occur red, during which the Defendant di scharged a shotgun on t he porch where he and t he other family members were gat hered. TheDefendant ’s brot her-i n-law wa s i njured, although not seriou sly. The Defendant was c harged with commit ting an aggravated a ssau lt against hi s brother- in-law. The jury found the Defendant guilty of the les ser includ ed offen se of ass ault.

On this appe al, the De fendan t fi rst arg ues that t he trialjudge erred by refusing to all ow the vict im to be cross-examinedconcerning a pl ea of guil ty the victim had entered to possessing marijuana for resale and cul tivat ing mariju ana.-3-

The victi m had ap pare ntly r eceived judi cial di version for these off enses. The State argues that the record on ap peal is inade quate for us to review this issue pr ope rly. We must agree. The record contai ns no pretri al motions concerning this issue. Defen se counsel did not attempt to cross-examine the victi m on these matters at the ti me the victi m tes t ified for th e State . At the c onclu sion o f his cross-examinat ion of the vi ctim, defense counsel stat ed, “you r hono r, I would have an offer of p roof whe never the court wa nts to do th at, aft er l unch or whateve r.” The jud ge replied , “all right.”

After the State r

ested its case, and after the trial j udge denied the Defe ndan t’s moti on for a jud gme nt of acquit

tal, def ense counsel stated, “of course I do want to put [the vi ctim] on for an offer of proof.” The judge then allowed counsel to r

ecall t he victi m out of the pre sence of thejury and question the victi m concerning his gui lty pl ea to and judi cial di version for the drug offenses. He also questi oned the vict im concerning whet her the vict im blamed the De fendan t for these c harges , which the victim den ied.
Concerning this i ssue, the transcr ipt contains no object ion by opposi ng coun sel, no arg ume nt from coun sel con cernin g the re le vance, a dmissibil ity or propriety of the testimony sought by way of th is li ne of cross- examination, and most importantly, no order or ruling by the tr ial cou rt addr essin g this issue, except forthe court’ s order over ruling t he motion for a new trial . Nothing i n the record indicates that the Defendant sought a r uling fr om the tri al judge on t his issue. We must conclude that thi s record does not adequately pr

esent the issue or

allow the issue to b e reviewe d.-4- The Defendant also ar gues thatthe trial court erre d in sente ncing him to the maxim um s enten ce of e leven m onths and tw enty-n ine da ys in the coun ty jail. He argues simply that “t he facts o f this case do not warran t the maximum senten ce.” While the facts of the offense may be found from the transcri pt of the trial, our revie w of the sentence is hampered by t he fact th at there i s no presentence report and t he Defendant neit her testi fied no r pr esented any evidence at the s entenci ng hearing. It appears f rom the record t hat the Defendant had six pri or felony forgery convicti ons and thathe was on parole fr om these offenses at

the time hecom mitted the as sault. A lthoug h not fo und in the record, we gather fr

om the argument presented at the sentenci ng hearing that the Defenda nt had other insta nces of crimina l convictions or crimina l behavior.

In sentencing t he Defendant, t he trialjudge stated, “t his is an offense which obviously

was fraught

with danger, co ming out on the porch of fam ily membe rs with a shotgun and fi ring away, and with hi s past recor d, I t hink th e State is correct in their positi on that the Defendant be given a sentence of eleven months and twenty-ni ne days and be required to serve that se ntenc e and that he shou ld serve seventy-f ive percent of that sente nce b efore h e is eligib le for any release programs, trusty stat us, or that so rt of co nsideration. ” From thi s record , we cannot conclude that the t rial j udge erred or abused his dis cretion i n sentencing the De fendan t.
The judgment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE-5-

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE