         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 2, 2001

             STATE OF TENNESSEE v. JAMES BRENT MOUBRAY

                  Direct Appeal from the Circuit Court for Weakley County
                         No. CR101-2000     William B. Acree, Judge



                   No. W2001-00214-CCA-R3-CD - Filed February 14, 2002


The Defendant was convicted by a jury of possessing a firearm where alcoholic beverages are
served, a Class A misdemeanor, and the trial court sentenced him to eleven months and twenty-nine
days to be served at seventy-five percent. The Defendant now appeals, arguing that the sentence
imposed by the trial court was excessive. Finding no error, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON , J., joined.

C. Michael Robbins, Memphis, Tennessee (on appeal); and Colin Johnson, Dresden, Tennessee (at
trial and on appeal), for the Appellant, James Brent Moubray.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Allen Strawbridge, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                                          I. Background

         The Weakley County Grand Jury indicted the Defendant on charges of unlawful possession
of a firearm in a place where alcoholic beverages are sold and of resisting arrest. The case was tried
before a jury. The jury convicted the Defendant of possessing a firearm where alcoholic beverages
are served, and the trial court sentenced him to eleven months and twenty-nine days incarceration.

                                              II. Facts

       On the evening of July 27, 2000, Martin police officers Eric Larson and Dean Brooks were
performing routine bar checks when they entered Dot’s Bar around midnight. Once inside, Larson
noticed the Defendant, James Brent Moubray, and asked Brooks if he also recognized him. Brooks
told Larson that he believed that the Defendant had outstanding arrest warrants. Larson then called
the Martin Police Department and confirmed that the Defendant had an outstanding warrant for
criminal trespass.

        In the meantime, Lieutenant Andy Phelps heard the dispatch and went to Dot’s Bar to assist
officers Larson and Brooks in arresting or executing a warrant on the Defendant. Once Lt. Phelps
arrived, all three officers approached the Defendant and informed him that he was being placed
under arrest based on the outstanding warrant. According to Larson, the Defendant became
“somewhat verbally abusive.”

         Larson testified that the Defendant finished his beer, stood up, raised his hands, and turned
to the right. Larson had placed one handcuff on the Defendant when a female “darted between [the
Defendant] and the wall,” and the Defendant pulled forward trying to get to her. Larson testified that
he and the Defendant “struggled a bit” as the Defendant was “trying to get towards this female.”
Larson testified that he was able to get the second handcuff on the Defendant, and then someone in
the bar yelled, “[g]un.” Although Larson testified that he did not see the gun, Lt. Phelps testified
that he saw the female reach in the Defendant’s waistband and pull out a pistol. Lt. Phelps testified
that he immediately grabbed the female by the arm and took her outside.

        The Defendant admitted that he was carrying a weapon in Dot’s Bar when the officers
arrested him; however, he testified that the reason he had the weapon was because he “had people
shoot” at him in the past. The Defendant claimed that although the police officers carried him out
of the bar, he “didn’t resist arrest.”

       The jury found the Defendant guilty of unlawful possession of a firearm in a place where
alcoholic beverages are sold but acquitted him on the resisting arrest charge. The trial court
dismissed the jury and held a sentencing hearing immediately following the trial.

        At the sentencing hearing, the Defendant sought to introduce into evidence the sentences that
two other individuals received for unlawful possession of a firearm where alcoholic beverages are
sold. According to the Defendant, the female who took the gun from his pants, as well as another
individual, were charged on the same night with unlawful possession of a firearm where alcoholic
beverages are sold, but the Defendant was the only one that was “bound over.” The trial judge stated
that he “couldn’t care less what happened to the other defendants.” However, the trial judge did
allow evidence of the other sentences to be entered into the record.

        The Defendant went on to discuss the sentences that he believed the two other individuals
received and stated that all of them “had been shot at, and stuff.” The trial court told the Defendant
that the Defendant had a “pretty bad attitude” and that “whatever may have happened to [the
Defendant] somewhere else on some other day, [the trial court] couldn’t care less about.” Defense
counsel then began to ask the Defendant if there was anything else he would like to tell the court and
asked the Defendant if he was remorseful. Before counsel completed the question, the trial court
stated, “[n]o, of course he’s not remorseful. I can tell that. You don’t have to ask him. If he says


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he is, he’s lying about it.” At the conclusion of the sentencing hearing, the trial court sentenced the
Defendant to eleven months and twenty-nine days, to be served at seventy-five percent.

                                            III. Analysis

         The Defendant argues that the sentence imposed by the trial court was excessive.
Specifically, the Defendant argues that in sentencing him, the trial court departed from the “overall
letter and spirit” of the 1989 Sentencing Reform Act.

        The Defendant also argues that the trial court was biased against the Defendant and
predisposed to sentence him harshly. In support of this argument, he points out the following
colloquy which took place during a bench conference immediately prior to trial:
        Defense Counsel: Your Honor, I had a long talk with [the Defendant], and I think
        he would be willing to plead to the indictment now. He wants you to sentence him,
        but he wants to be sentenced soon. He doesn’t want to wait another month for
        sentencing.
        Court: I don’t give a darn what he wants.
        Defense Counsel: Well, - -
        Court: Does he want to enter a plea of guilty, or does he want to - - and I’m going
        to bust his rear end. I can tell you that right now.
The Defendant further points out that at the hearing on the motion for new trial, the trial court stated,
“[t]he reason he got 75 percent, was ordered to serve 75 percent of the sentence is because I couldn’t
order him to serve a hundred percent.”

        In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the trial court
is required to allow the parties a reasonable opportunity to be heard on the question of the length of
the sentence and the manner in which it is to be served. Tenn. Code Ann. § 40-35-302(a). In this
case, the trial court did so. Further, the sentence imposed must be specific and consistent with the
purposes and principles of the Criminal Sentencing Reform Act of 1989. Id. § 40-35-302(b). A
percentage of not greater than seventy-five percent of the sentence should be fixed for service, after
which the Defendant becomes eligible for “work release, furlough, trusty status and related
rehabilitative programs.” Id. § 40-35-302(d).

       The misdemeanant, unlike the felon, is not entitled to the presumption of a minimum
sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in determining
the percentage of the sentence to be served in actual confinement, the court must consider
enhancement and mitigating factors as well as the purposes and principles of the Criminal
Sentencing Reform Act of 1989, and the court should not impose such percentages arbitrarily. Tenn.
Code Ann. § 40-35-302(d).

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Id. § 40-35-401(d). The Tennessee Supreme
Court has held that in misdemeanor sentencing a trial court is not required to place specific findings

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on the record. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). A trial court need only
consider the principles of sentencing and the enhancement and mitigating factors in order to comply
with the legislative mandates of the misdemeanor sentencing statute. Id. In this case, the trial court
considered the principles of sentencing and enhancement and mitigating factors. Therefore, our
review in this case is de novo with a presumption of correctness.

         After a careful review, we conclude that the sentences imposed by the trial court are
supported by the facts in the record, as well as by the appropriate principles of sentencing. In this
case, the trial court found as an enhancement factor that “the defendant has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range.” Tenn. Code Ann. § 40-35-114(1). In applying this factor, the trial court considered the
following: (a) the Defendant’s prior criminal record, which consisted of five misdemeanors; (b) a
charge of resisting arrest in the present case for which the Defendant was acquitted; (c) the
Defendant’s prior criminal behavior involving drug possession, resulting in an appearance before
the trial court on drug-related charges; and (d) the Defendant’s conduct in the presence of the trial
court. The trial court found no mitigating factors.

        The record indicates that the Defendant had been convicted of five prior misdemeanor
convictions. The trial court considered the Defendant’s prior misdemeanor convictions for violation
of an order of protection, resisting arrest, unlawful possession of a weapon, criminal trespass, and
disorderly conduct. The Defendant concedes that these convictions were properly considered in
sentencing him.

        The Defendant argues that the trial court erred in considering the Defendant’s charge for
resisting arrest in the present case because the jury acquitted him of the charge. The trial court found
that the State, despite the jury’s verdict in this case, proved by a preponderance of the evidence that
the Defendant was guilty of resisting arrest based on his actions in Dot’s Bar. Our supreme court
has held that the Sentencing Reform Act “does not preclude consideration of facts proven by a
preponderance of the evidence, even where the facts are the basis of a charge for which there has
been an acquittal.” State v. Winfield, 23 S.W.3d 279, 282 (Tenn. 2000). We conclude that the trial
court in this case properly considered as criminal behavior the Defendant’s behavior that was the
basis for the resisting arrest charge. Officers Larson and Brooks both testified that they had to
physically carry the Defendant out of the bar on the night he was arrested. Although the Defendant
claimed that he did not resist arrest, he did agree that the officers carried him out of the building.
We conclude that the Defendant’s behavior resulted in him being carried outside and substantiates
the charge of resisting arrest. Thus, the trial court properly considered the Defendant’s behavior
upon which the resisting arrest charge was based as prior criminal behavior for purposes of
Tennessee Code Annotated § 40-35-114(1).

        We also conclude that the trial court properly considered the Defendant’s behavior that
resulted in the prior felony drug charges against him. The trial court considered the fact that the
Defendant had recently been in the same court on a felony drug-related case. According to the trial
judge, although the case was dropped because of a procedural problem with a search warrant, “the


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evidence in that case reflected [that the Defendant] did have the contraband, which is criminal
behavior, which the court may consider.” We agree.

       Finally, the trial judge considered his own observations of the Defendant’s behavior outside
the courtroom, which the judge believed to be “disturbing the peace” and showing “a great deal of
disrespect for this Court.” The trial court observed (or heard) behavior by the Defendant that the trial
court believed to be prior criminal behavior for purposes of Tennessee Code Annotated § 40-35-
114(1). The record is not clear as to the specifics of the Defendant’s behavior. At the sentencing
hearing, the trial court stated:
                 I have witnessed myself, the defendant engaged in behavior outside the
       courtroom, which would probably have led to disturbing the peace, if he had been
       charged with that, and has certainly showed a great deal of disrespect for this court.

At the hearing on the Defendant’s motion for a new trial, the trial court stated:
                Mr. Johnson, when we were holding court out at the jail in the courtroom out
        there for awhile, I, personally, heard Mr. Moubray create very severe disturbances
        outside the courtroom. We had him in court on another matter, and he was just very
        fortunate that the - - wasn’t it a situation, I think, with a defective warrant, or
        something of that nature - - a defective search?
The record is also not clear as to whether the Defendant’s behavior described by the trial court during
the new trial motion is the same behavior referred to by the trial court at the sentencing hearing.

        The Tennessee Rules of Evidence prohibit testimony in a trial by a judge or chancellor
presiding at the trial. Tenn. R. Evid. 605. “ No objection need be made in order to preserve the
point.” Id. Further, the trial court’s observations in this case of the Defendant’s behavior on prior
occasions are clearly not the type of adjudicative facts that would be the proper subject of judicial
notice. See Tenn. R. Evid. 201(b). While it was perfectly proper at both the sentencing hearing and
the hearing on the motion for new trial for the trial court to assess the attitude, demeanor and
credibility of the Defendant as a witness, we have concluded that the trial court erred in considering
the Defendant’s “behavior outside the courtroom,” as witnessed personally by the trial court.

        However, even having concluded that the trial court improperly considered the “disturbing
the peace” and “disrespectful” behavior by the Defendant, we do not conclude that any modification
of the Defendant’s sentence is warranted. The Defendant has five prior criminal convictions and two
other instances of criminal behavior, and we agree with the trial court’s conclusion that there are no
mitigating factors. The sentence imposed by the trial court was justly deserved by this Defendant.

        The Defendant also argues that the trial court should have considered the sentences imposed
for two other people in the bar on the same evening who were charged with the same crime. During
the sentencing hearing, the trial judge stated that he “couldn’t care less what happened to the other
defendants.” However, the trial judge did allow evidence of the other convictions and sentences to




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be entered into the record.1 Although the sentences of the other individuals differed from that of the
Defendant, there is no evidence in the record concerning the particular facts and circumstances that
may have been relevant in the sentencing of these individuals. Therefore, the trial court had no
reason to find, nor can we conclude, that the Defendant’s sentence was disproportionate to the
sentences received by the other individuals.

         Accordingly, we AFFIRM the judgment of the trial court.




                                                                 ___________________________________
                                                                 ROBERT W. WEDEMEYER, JUDGE




         1
         On the night that the D efendan t was arrested, two oth er ind ividu als were also charged and later convicted of
possession of a weapon where alcoholic beverages are sold. One of the individuals was sentenced to eleven months and
twenty-nine days, all suspended, and the other was sentenced to six months, with four of those months suspended.

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