        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE            FILED
                       NOVEMB ER SESSION, 1997       January 28, 1998

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 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 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 Avenu e 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
                                      OPINION

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

Appe llate Proced ure. The Defendant was convicted on a jury verdict of the

offense of assau lt.1 The jury imposed a fine of two-thousand five hundred do llars

($2500). The trial judge sentenced the Defendant to eleven months and twenty-

nine 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 cou rt.



          The Defendant does not challenge the sufficiency of the convicting

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

Fathe r’s Day, a group of family members had gathe red at th e Def enda nt’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 assau lt against his 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 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.



1
    Tenn. Code Ann. § 39-13-101.

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

State argues that the record on ap peal is inade quate 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 th e State . At the c onclu sion o f his

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

have an offer of p roof whe never the court wa nts to do th at, after lunch or

whateve r.” The jud ge replied , “all right.”



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

Defe ndan t’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 De fendan t for these c harges , which the victim den ied.



       Concerning this issue, the transcript contains no objection by opposing

coun sel, no arg ume nt from coun sel con cernin g the re levance, a dmissibility or

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

most importantly, no order or ruling by the tr ial cou rt addr essin g 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. W e

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

issue to b e reviewe d.




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      The Defendant also argues that the 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 “the facts of this case do not warrant the maximum

senten ce.” 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 com mitted the as sault. A lthoug h not fo und in the

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

Defenda nt had other insta nces of crimina l convictions or crimina l behavior.



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

obviously was fraught with danger, co ming out on the porch of fam ily membe rs

with a shotgun and firing away, and with his past record, I think th e 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 se ntenc e and that he shou ld

serve seventy-five percent of that sente nce b efore h e is eligib le 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 De fendan t.



       The judgment of the trial court is affirmed.



                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



                                          -4-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




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