          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               FILED
                                AT KNOXVILLE                 August 12, 1999

                                                            Cecil Crowson, Jr.
                             JULY 1999 SESSION              Appellate C ourt
                                                                Clerk



STATE OF TENNESSEE,                  )
                                     )    NO. 03C01-9810-CC-00347
      Appellee,                      )
                                     )    BLOUNT COUNTY
VS.                                  )
                                     )    HON. D. KELLY THOMAS, JR.,
ARNOLD LEE POTTER,                   )    JUDGE
                                     )
      Appellant.                     )    (Assault: Sentencing)



FOR THE APPELLANT:                        FOR THE APPELLEE:

RAYMOND MACK GARNER                       PAUL G. SUMMERS
District Public Defender                  Attorney General and Reporter

SHAWN G. GRAHAM                           CLINTON J. MORGAN
(At Trial)                                Assistant Attorney General
Assistant District Public Defender        Cordell Hull Building, 2nd Floor
419 High Street                           425 Fifth Avenue North
Maryville, TN 37804                       Nashville, TN 37243-0493

JULIE A. RICE                             MICHAEL L. FLYNN
(On Appeal)                               District Attorney General
P. O. Box 426
Knoxville, TN 37901-0426                  WILLIAM R. REED
                                          LISA B. McKENZIE
                                          Asst. District Attorneys General
                                          363 Court Street
                                          Maryville, TN 37804-5906




OPINION FILED:



AFFIRMED - RULE 20 ORDER



JOE G. RILEY, JUDGE
                                     ORDER


       The sole issue in this appeal is whether the trial court erred in sentencing the

defendant for simple assault to the maximum sentence of 11 months and 29 days

and denying alternative sentencing. We AFFIRM the judgment of the trial court

pursuant to Rule 20, Tennessee Court of Criminal Appeals.



                                           I



       The defendant, Arnold Lee Potter, was tried by a jury in Blount County for the

offense of aggravated assault and convicted of the lesser offense of simple assault.

Although the trial transcript is not a part of the record, some basic facts are

apparent from the sentencing hearing.



       The defendant and his girlfriend, the victim, had lived together for several

years. To say the parties had a stormy relationship would be an understatement.

The victim apparently drank to excess on several occasions, leading to arguments

with defendant. Invariably, the fight was on. An argument and fight ensued

between them on December 9, 1996, resulting in numerous injuries to the victim.

It was defendant’s contention that he acted in self-defense. As stated, the jury

convicted the defendant of the lesser offense of simple assault.



       The defendant and the victim continued to live together after the trial. During

this time, another physical confrontation occurred in which the defendant hit the

victim in the nose with his fist. Again, the defendant claimed he acted in self-

defense.



       At the time of sentencing, the defendant was 35 years of age and serving a

45-day jail sentence for driving on a revoked license. In addition to that conviction,

he had the following prior convictions or forfeitures: three DUI’s, two other driving

on revoked license, four marijuana possessions, an assault on an officer,

                                          2
contributing to the delinquency of a minor and destruction of county property. He

denied having an alcohol problem and admitted smoking marijuana subsequent to

the trial. He was employed and had a ninth-grade education.             Although the

defendant acknowledged at the sentencing hearing that he still loved the victim, he

had decided their relationship “ain’t going to work. [I] haven’t been back and ain’t

going to.”



                                          II



       In its findings, the trial court noted the defendant’s extensive misdemeanor

history, the numerous injuries inflicted upon the victim as reflected in the

photographs introduced at trial, defendant’s untruthfulness, defendant’s smoking

marijuana after the trial, defendant’s again physically striking the victim after the

trial, and defendant’s poor rehabilitation potential. In setting bond, the trial court

further found that the defendant was a danger to the victim and to himself.



                                          III



              This Court’s review of the sentence imposed by the trial court is de

novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). We also

note that the trial court has more flexibility in misdemeanor sentencing than in felony

sentencing. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998).



       The record does not contain the trial transcript. Since much of this evidence

was relevant to sentencing, defendant’s failure to include the trial transcript

precludes effective appellate review. Troutman, 979 S.W.2d at 274; State v.

Ballard, 855 S.W.2d 557, 561 (Tenn. 1993). Notwithstanding waiver, the record

amply supports the trial court’s imposition of the maximum misdemeanor sentence

and the denial of alternative sentencing.       Defendant has not overcome the

presumption of correctness of the trial court’s sentence.


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      IT IS, THEREFORE, ORDERED that the judgment of the trial court be

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. It is further

ORDERED that costs be taxed to the state since defendant is indigent.



                                              _____________________________
                                              JOE G. RILEY, JUDGE




CONCUR:


_______________________________
GARY R. WADE, PRESIDING JUDGE



_______________________________
DAVID H. WELLES, JUDGE




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