FILED

January 28, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER 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

)

Appellant. ) (Assault)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF PUTNAM COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

H. MARSHALL JUDD JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

215 Reagan Street

Cookeville, TN 38501 DARYL J. BRAND

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

BILL GIBSON

District Attorney General

JOHN NISBETT

Assistant District Attorney General

145 South Jefferson Avenue

Cookeville, TN 38501

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

Tenn. Code Ann. § 39-13-101.

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OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. The Defendant was convicted on a jury verdict of the

offense of assault.1

 The jury imposed a fine of two-thousand five hundred dollars

($2500). The trial judge sentenced the Defendant to eleven months and twentynine days in the county jail, with seventy-five percent (75%) to be served. The

Defendant appeals his conviction and his sentence. We affirm the judgment of

the trial court.

The Defendant does not challenge the sufficiency of the convicting

evidence, so we address the facts only briefly. On June 19, 1994, same being

Father’s Day, a group of family members had gathered at the Defendant’s

father’s house to commemorate the occasion. Late that afternoon, the Defendant

arrived at the house, apparently in a foul mood. An altercation occurred, during

which the Defendant discharged a shotgun on the porch where he and the other

family members were gathered. The Defendant’s brother-in-law was injured,

although not seriously. The Defendant was charged with committing an

aggravated assault against his brother-in-law. The jury found the Defendant

guilty of the lesser included offense of assault. 

On this appeal, the Defendant first argues that the trial judge erred by

refusing to allow the victim to be cross-examined concerning a plea of guilty the

victim had entered to possessing marijuana for resale and cultivating marijuana.
-3-

The victim had apparently received judicial diversion for these offenses. The

State argues that the record on appeal is inadequate for us to review this issue

properly. We must agree. The record contains no pretrial motions concerning

this issue. Defense counsel did not attempt to cross-examine the victim on these

matters at the time the victim testified for the State. At the conclusion of his

cross-examination of the victim, defense counsel stated, “your honor, I would

have an offer of proof whenever the court wants to do that, after lunch or

whatever.” The judge replied, “all right.”

After the State rested its case, and after the trial judge denied the

Defendant’s motion for a judgment of acquittal, defense counsel stated, “of

course I do want to put [the victim] on for an offer of proof.” The judge then

allowed counsel to recall the victim out of the presence of the jury and question

the victim concerning his guilty plea to and judicial diversion for the drug

offenses. He also questioned the victim concerning whether the victim blamed

the Defendant for these charges, which the victim denied. 

Concerning this issue, the transcript contains no objection by opposing

counsel, no argument from counsel concerning the relevance, admissibility or

propriety of the testimony sought by way of this line of cross-examination, and

most importantly, no order or ruling by the trial court addressing this issue, except

for the court’s order overruling the motion for a new trial. Nothing in the record

indicates that the Defendant sought a ruling from the trial judge on this issue. We

must conclude that this record does not adequately present the issue or allow the

issue to be reviewed. 
-4-

The Defendant also argues that the trial court erred in sentencing him to

the maxim um sentence of eleven m onths and twenty-nine days in the county jail.

He argues simply that “the facts of this case do not warrant the maximum

sentence.” While the facts of the offense may be found from the transcript of the

trial, our review of the sentence is hampered by the fact that there is no

presentence report and the Defendant neither testified nor presented any

evidence at the sentencing hearing. It appears from the record that the

Defendant had six prior felony forgery convictions and that he was on parole from

these offenses at the time he committed the assault. Although not found in the

record, we gather from the argument presented at the sentencing hearing that the

Defendant had other instances of criminal convictions or criminal behavior.

In sentencing the Defendant, the trial judge stated, “this is an offense which

obviously was fraught with danger, coming out on the porch of family members

with a shotgun and firing away, and with his past record, I think the State is

correct in their position that the Defendant be given a sentence of eleven months

and twenty-nine days and be required to serve that sentence and that he should

serve seventy-five percent of that sentence before he is eligible for any release

programs, trusty status, or that sort of consideration.” From this record, we

cannot conclude that the trial judge erred or abused his discretion in sentencing

the Defendant.

The judgment of the trial court is affirmed.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE