        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        AUGUST 1999 SESSION
                                                  FILED
                                                  September 1, 1999

                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,              )              Appellate Court Clerk
                                 )
           Appellee,             )   C.C.A. No. 02C01-9901-CC-00036
                                 )
vs.                              )   Carroll County
                                 )
O. B. FREEMAN GREEN, JR.,        )   Hon. C. Creed McGinley, Judge
                                 )
           Appellant.            )   (Aggravated Assault)
                                 )

FOR THE APPELLANT:                   FOR THE APPELLEE:

RAYMOND L. IVEY                      PAUL G. SUMMERS
P.O. Box 667                         Attorney General & Reporter
Huntingdon, TN 38344
                                     CLINTON J. MORGAN
                                     Counsel for the State
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     ROBERT RADFORD
                                     District Attorney General

                                     ELEANOR CAHILL
                                     Assistant District Attorney General
                                     P.O. Box 686
                                     Huntingdon, TN 38344




OPINION FILED: _____________



AFFIRMED



JAMES CURWOOD WITT, JR., JUDGE
                                      OPINION

              The defendant, O. B. Freeman Green, Jr., appeals his Carroll County

Circuit Court conviction of aggravated assault. See Tenn. Code Ann. § 39-13-

102(a)(1)(A) (1997). After a trial in which a jury returned a guilty verdict, the trial

court imposed a Range II sentence of nine years to be served in the Tennessee

Department of Correction. The only issue raised by the defendant in this appeal is

whether the trial court erred in allowing the impeachment of the defendant as a

witness by the use of past criminal convictions. We affirm the judgment of the trial

court.



              The conviction is based upon an offense that occurred in the Carroll

County jail. On January 2, 1998, the victim, Larry Sherrod, reported to the Carroll

County jail to begin serving a DUI sentence. His wife dropped him off at the jail at

6:55 p.m., and the victim was immediately processed into the facility. He was

admitted to his assigned enclosure, which held approximately twenty prisoners. He

immediately went to a vacant cot and began to make up his bed, when he was

approached by the defendant and another prisoner who was not identified. Sherrod

testified that the defendant said to him, “I’ll make you my bitch.” This comment

startled the victim, and he stood up. The defendant then hit him twice, once with

each fist, in the nose. The victim’s nose began to bleed, and he experienced pain

and blurred vision. He tried to kick on the door to the enclosure in order to get the

jailer’s attention, but the defendant came to him again and warned him about

summoning the officers into the enclosure. The victim then went to a telephone that

was located within the enclosure, called his wife, and asked her to call the jailer to

send someone to help him. The victim’s wife testified she received the call at 7:15

p.m.



              The victim had bled on his shirt and on the floor, and while he was

tending to his injury in the bathroom, the defendant began to clean up the blood

from the floor. The victim’s wife called the jailer, and officers entered the enclosure



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and took the victim to the hospital. The victim’s nose felt crushed, his eyes were

puffy and turning black underneath, and he experienced a headache, disorientation,

and pain in his face and teeth.



              On January 19, 1998, the victim underwent surgery on his nose;

however, both the victim and his wife testified that his face remained disfigured

because his nose “leans toward the right.” As of the time of trial, the victim

continued to experience headaches and sinus problems which he had not

experienced prior to the injury. A radiologist who x-rayed the victim’s nose testified

at trial and confirmed that the nose had been broken.



              The defendant called two witnesses who were inmates in the victim’s

enclosure at the time of the offense. Both of these witnesses denied seeing the

defendant assault the victim. The defendant testified somewhat erratically that he

did not assault the victim and that the victim came into the jail on December 26,

1997, not on January 2, 1998.



              The defendant filed a pretrial motion in limine and asked the trial court

to disallow the use his prior convictions as impeachment evidence. The defendant

was convicted in 1985 of rape and kidnapping and in 1988 of five counts of forgery.

Prior to the state resting its case at the trial, the trial court announced on the record

its findings and ruling on the motion in limine. The trial court acknowledged that the

prior convictions were “somewhat remote in time,” but it found that the date of

release from incarceration was within the ten-year period set forth in Tennessee

Evidence Rule 609. The trial court then considered whether the danger of unfair

prejudice from the use of the convictions for impeachment purposes outweighed the

probative value, and the trial judge noted that, based upon the opening statements

of counsel1 and the defendant’s cross-examination of the victim, the defendant’s




       1
              Opening statements were not included in the transcript of the
evidence.

                                           3
version of the events would be “diametrically opposed to that of the alleged victim.”

Accordingly, the trial court found that credibility is a “very, very important

determinative part of the case.” The court found that the danger of unfair prejudice

was not great and that the probative value for impeachment purposes outweighed

the danger of unfair prejudice. The trial court then instructed the defendant as to

his rights regarding his decision to testify.



              When the state commenced its cross-examination of the defendant,

it impeached him with evidence of all three prior convictions. Immediately following

this impeachment, the trial court instructed the jury that if they found from the proof

that the defendant had been convicted of a prior crime or crimes, they could

consider such evidence only for the purpose of assessing the defendant’s credibility

and may not use it “as to his guilt for the crime that is on trial.”



              In this appeal, the defendant challenges only the use of the prior

convictions of rape and kidnapping.



              The State of Tennessee may use a prior conviction to impeach an

accused if the conviction meets the criteria established by rule 609, Tennessee

Rules of Evidence. The criteria established by rule 609 are: (a) the prior conviction

was for a crime punishable by death or imprisonment in excess of one (1) year or

a misdemeanor conviction involving dishonesty or a false statement; (b) less than

ten (10) years has elapsed between the date the accused was released from

confinement and the commencement of the present prosecution; (c) the state must

give reasonable written notice of the particular convictions it intends to use to

impeach the accused prior to trial; and (d) the trial court must find the probative

value of each conviction on the issue of credibility outweighs its unfair prejudicial

effect. Tenn. R. Evid. 609(a)(2)-(3), (b); see State v. Farmer, 841 S.W.2d 837, 839

(Tenn. Crim. App.).




                                           4
              In the present case the trial court found that the prior convictions were

felonies and that less than ten years had elapsed between the date the accused

was released from confinement and the commencement of the present prosecution.

The trial court further found that the state gave reasonable pretrial written notice of

the convictions it intended to use for impeachment purposes. The defendant

challenges none of these findings and argues only that the probative value of the

evidence of the rape and kidnapping convictions was outweighed by the unfair

prejudicial effect.



                In determining whether the probative value of a prior conviction to be

used to impeach an accused outweighs the unfair prejudicial effect on the issues

to be resolved by the jury, the trial court should (a) “assess the similarity between

the crime on trial and the crime underlying the impeaching conviction,” and (b)

“analyze the relevance the impeaching conviction has to the issue of, credibility.”

N. Cohen, D. Paine, and S. Sheppard, Tennessee Law of Evidence, §609.9 at p.

376 (3rd ed. 1995); see Farmer, 841 S.W.2d at 839. “The standard is not whether

there is any prejudice to the defendant by allowing the state to use the prior

conviction for impeachment, but whether the possible prejudice is outweighed by

the probative value of the evidence as to the defendant’s credibility as a witness.”

State v. Roberts, 943 S.W.2d 403, 408 (Tenn. Crim. App. 1996) (italics in original).



              In reviewing the trial court’s determination, this court “does not re-

evaluate whether the probative value of the . . . prior convictions outweighs the

possible prejudicial effect it might have had. We only evaluate whether the trial

judge abused his discretion . . . .“ Id; see also State v. Harris, 839 S.W.2d 54, 66

(Tenn. 1992).



              In reviewing the trial court’s exercise of discretion in the present case,

we readily discern the nexus between the violence implicit in rape and kidnapping

and the explicit violence that was shown in the case on trial. “However, the fact that



                                           5
a prior conviction involves a similar crime for which the defendant is being tried does

not automatically require its exclusion.” State v. Blevins, 968 S.W.2d 888, 893

(Tenn. Crim. App. 1997). “[T]he trial court must analyze the prior conviction and the

offense on trial to determine whether the conviction’s probative value on credibility

is outweighed by the danger of unfair prejudice on the substantive issues.” Id. In

the present case, the court concluded that the probative value weighed heavier in

the balance. For the reasons explained below, we hold that this discretionary

decision should not be disturbed.



              In analyzing this issue, we initially note that the prior convictions were

both felonies. Even though the prior convictions’ impact on credibility should be

considered, Rule 609 does not require as a threshold matter that prior felonies

offered for impeachment involve dishonesty or false statement, as is the case with

prior misdemeanor convictions. See Tenn. R. Evid. 609(a)(2); Blevins, 968 S.W.2d

at 892-93. Second, although violence may be implicit in the prior offenses of rape

and kidnapping, the defendant was not on trial in the trial court for either of these

offenses. Thus, although the offenses had a similar characteristic, they were not

identical.   Third, the trial court aptly observed that, because the defendant

contradicted the victim’s version of the events, the defendant’s credibility was a key

issue in the trial. Finally, the trial court gave clear and cogent admonitions to the

jury concerning the proper use of the impeachment evidence.2



              We find that the factors referenced above support the trial judge in the

exercise of his discretion to allow the impeachment evidence.



              For the foregoing reasons, the judgment of the trial court is affirmed.




       2
              As an aside, we note that the jury necessarily knew that the
defendant was incarcerated on January 2, 1998. We attach little significance to
this information, however, because obviously the jury could not assume that the
defendant’s incarceration at that time in the Carroll County jail signified that he
had been convicted of an offense.

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                                  ________________________________
                                  JAMES CURWOOD WITT, JR., JUDGE


CONCUR:



_______________________________
DAVID H. WELLES, JUDGE



_______________________________
JERRY L. SMITH, JUDGE




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