                   IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE                      FILED
                                AUGUST 1998 SESSION
                                                                       October 7, 1998

                                                                      Cecil W. Crowson
                                                                     Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )      C.C.A. No. 01C01-9709-CR-00402
             Appellee,           )
                                 )      Davidson County
v.                               )
                                 )      Honorable Seth Norman, Judge
CALVIN DEWAYNE BRANCH, )
                           )    (Driving Without a License; Knowing
             Appellant.          )       Possession of Handgun by Convicted Felon)




FOR THE APPELLANT:                      FOR THE APPELLEE:

Roger K. Sm  ith                 John Knox Walkup
104 Woodmont Boulevard                   Attorney General & Reporter
Suite 115                                425 Fifth Avenue, North
Nashville, TN 37205              Nashville, TN 37243-0493

                                        Karen M. Yacuzzo
                                        Assistant Attorney General
                                        425 Fifth Avenue, North
                                        Nashville, TN 37234-0493

                                        Victor S. Johnson, III
                                        District Attorney General
                                        222 Second Avenue, North, Suite 500
                                        Nashville, TN 37201-1649

                                        James W Milam
                                                 .
                                        Assistant District Attorney General
                                        222 Second Avenue, North, Suite 500
                                        Nashville, TN 37201-1649




OPINION FILED: _______________________________


AFFIRMED


L. T. LAFFERTY, SPECIAL JUDGE
                                                OPINION



        The defendant, Calvin Dewayne Branch, appeals as of right from his convictions for driving without

a driver’s license and the knowing possession of a handgun by a convicted felon by a jury in the Davidson

County Criminal Court. After a sentencing hearing, the trial court sentenced the defendant to tim served for
                                                                                                 e

driving without a driver’s licenseandto six yearsas a career offender for the knowing possession of a handgun

by a convicted felon. The defendant raises four issues in this appeal: (1) whether the trial court erred in

charging thejurytheRange1 penaltyprovidedfor aClass Efelony, one year totwo years, then subsequently,

after the jury had retired, recalling themandrecharging them with the entire penalty range of a Class E felony,

one year tosix years; (2) whether thedefendant was prejudiced by the conduct of the State and a witness for

the State alluding tothe defendant’s prior convictionsduring direct examination; (3) whether the defendant was

prejudiced by the State, during closing argum alluding to the defendant’s not testifying; and (4) whether
                                             ent,

the fine levied by the jury was excessive due to the defendant’s impoverished circumstances.



        The judgment of the trial court is affirmed.



        On May 14, 1996, Officer Greg Adam Davidson County Metro Police Department, was working an
                                          s,

undercover operation to deter street-level prostitution activity. Officer Adams was in radio contact with other

police officers in working this detail. W driving westbound on a Nashville city street, Officer Adams
                                         hile

observed a vehicle come flying up on his bumper, flashing its lights and honking its horn, in an attempt to get

the officer topull over. The officer was aware the vehicle was not operated by another undercover officer and

radioed for backup. Officer Adams believed the rear of his vehicle was about to be hit by the vehicle behind

him, so the officer jumpedfrom his vehicle. The vehicle, a Toyota truck, driven by the defendant, stopped less

than a foot behind the officer’s vehicle. Other officers arrived to assist Officer Adams.



        Officer WilliamMackall wasassistingOfficer Adams inthisundercover operation. Officer Mackall was

advised by Officer Adams that a subject in a vehicle was riding his bumper and flashing his lights. Upon

seeing thisincident, Officer Mackall turned his vehicle around and followed Officer Adams and thedefendant.

Officer Mackall made a decision to “take dow the vehicle’s operator by activating his blue lights and siren.
                                            n”



                                                       2
While the defendant was stopping his truck, Officer Mackall observed the defendant lay down in the seat and

out of the officer’s view. Officer Mackall observed the passenger door of the truck open and saw ashiny object

come out of the truck. Officer Mackall recovered a .38 revolver, fully loaded with six live rounds. The

defendant, at first, identified himself as Kevin Blanchard. After giving conflicting information between his age

and date of birth, the defendant finally admitted his true name was Calvin Branch. The defendant failed to

produce a valid driver’s license.



        The defendant did not testify in his own behalf.



        The defendant was indicted for reckless endangerment, driving without a license, criminal

impersonation, and a convicted felon with a handgun. At the conclusion of the trial, the trial court dismissed

the counts of reckless endangerm and criminal impersonation.
                                ent



                                           APPELLATE ISSUES



                                                        A.



        The defendant contends the trial court committed error by allowing thejuryto deliberate on its verdict

before correcting a mistakein the original chargeasto the range of punishm fora Class Efelony. The State
                                                                          ent

counters this argument, alleging the defendant waived this issue by failing to object and in any event the trial

court properly corrected its error prior to the jury’s deliberations.



        The defendant did not raise a contemporaneous objection to the trial court’s original charge of the

range of punishment for a Class E felony. However, this does not mean the defendant has waived any

complaint. If a jury instruction is erroneous, the defendant may sit on his objection and allege it as a ground

in support of his motion for a newtrial. State v. Haynes, 720S.W 76, 84-85 (Tenn. Crim App.), per. app.
                                                                .2d                   .

denied(Tenn. 1986);State v. James R. Hankins, Shelby CountyNo. 02C01-9603-CR-00098, 1997 LEXIS

497 (Tenn. Crim. App., Jackson, May23, 1997). Citing State v. Stephenson, 878 S.W.2d 530, 555 (Tenn.

1994), the defendant argues “under Tennessee law, a crim defendant has the right to have a correct and
                                                        inal

complete charge of the law given to the jury by the trial judge.” State v. Teel, 793 S.W.2d 236, 249 (Tenn.

                                                         3
1990); State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). Also, the defendant insists the

second charge, without explanation, was confusing, inconsistent, and contradictory.



         Analysis. First, w notetheerroneous jury chargewas not applicable to the m
                           e                                                       eritsor the elements

of the offenses of driving without a license and being a convicted felon with a handgun. Second, we note the

defendant contends the jury had deliberated over the facts before the jury charge was corrected. However,

the record establishes that the jury charge was completed at 2:10 p.m and the jury left the courtroom. The
                                                                     .

State immediately raised their concern about the incorrect charge on the range of punishment for a Class E

felony with the trial court. The jury returned to the courtroomat 2:11 p.m and was advised by the trial court
                                                                          .

the correct range of punishm for a Class E felony was one to six years. Whereupon, the jury retired to
                            ent

consider their verdict at 2:12p.m Withinthistime frame, it would be difficult for any juryto begin deliberations
                                 .

on the merit of these offenses. The evidence at trial was overwhelming as to the defendant’s guilt, and if the

incorrect charge was error, it w harmless error at best. Tenn. R. App. P. 36 (b). There is no m to this
                                as                                                             erit

issue.

                                                      B.



         The defendant contends he was prejudiced by the conduct of the State and a witness for the State

alluding to thedefendant’s prior convictions during direct examination. TheState arguesthe defendant waived

any error by failing to make acontemporaneous objection, move to strike the testimony, or request a curative

instruction.



         The matter of controversy surroundsthe direct examinationof Officer Adam by the State and Officer
                                                                                 s

Adams’s response. The Stateattempted tosolicit testimony fromOfficer Adams concerning the identity of the

defendant and the defendant’s conflicting statements.


                 Q. After he stopped did you speak to him and ask him his name?

                 A. Yes, I did.

                 Q. What was his response?

                 A. He gave Kevin Blanchard. And a date of birth, uh, I asked him had
                    he ever been arrested before and he said he had. And we asked
                    him for w and. . .
                             hat



                                                       4
                 Q. Well, let me, let me ask you this. After he gave you the name, was
                    that the last name he gave you, or was there any other name given?

                 A. There was another name given, also.




        Prior to trial, the defendant filed a motion in limine requesting an out of jury hearing to determine the

admissibility of the defendant’s past arrests, wrongs, and convictions. Thus, the defendant argues the State,

in soliciting the testimony of the defendant’s arrest history, denied the defendant a fair trial.



        However, the record does not establish that the State was deliberately attempting to solicit any

information concerning the defendant’s past convictions. If the State had wished to raise any past convictions

of the defendant, then the State must comply with the requirements of the motion in limine and Rule 404(b),

Tennessee Rules of Evidence. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997). Also, the defendant

did not raise a contemporaneous objection nor request the trial court to give the jury a curative instruction.1



        We find the witness’s statement was improper, unresponsive, and unsolicited. Although Officer

Adams’s statem was brief regarding an arrest, he did not allude to the nature of any prior arrest or
              ent

conviction. As stated, the proof was overwhelming, and we find the brief statement of Officer Adams did not

prejudicially affect the jury as to the defendant’s guilt. Tenn. R. App. P 36(b); State v. Smith, 893 S.W.2d

908, 923 (Tenn. 1994); State v. Reiko Nolen, Dyer County No. 02C01-9601-CC-00008, 1996 WL432347

(Tenn. Crim. App., Jackson, August 2, 1996), per. app. denied (Tenn. 1997). There is no merit to this issue.



                                                       C.



        The defendant contends he was prejudiced by the District Attorney General, duringclosing argument,

alluding to the defendant’s not testifying. The State counters that the State did nothing m than rebut the
                                                                                           ore

defendant’s unsubstantiated assertions he mistakenly believed that Officer Adams was a friend of his.



        In order to prevail on this issue, the defendant must not only show the argument was improper, but


        1
       It may have been the better practice for the trial court to sua sponte give such instruction in the
absence of a request.

                                                        5
also must establishthealleged error prejudicedthedefendant at trial. Thetest for establishing prejudicial error

is whether the jury could consider the defendant’s case with impartiality despite the alleged improper remark

by the State. State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984); Coker v. State, 911 S.W.2d 357, 369

(Tenn. Crim. App. 1995); Judge v. State, 539 S.W 340, 344 (Tenn. Crim App. 1976). H
                                                .2d                  .             owever,

allegations of improper argument on the State’s part may be in response to those arguments raised by the

defendant. State v. Ashburn, 914 S.W.2d 108, 115 (Tenn. Crim. App.), per. app. denied (Tenn. 1995).



        To put this issue in proper prospective, we will address both the arguments of the State and the

defendant. In his closing argument, the defendant stated to the jury:


                 As we said in the opening, this is not the case of the century that you heard
                 heretoday and yesterday. What it boiled down to was Mr. Branch pulled up
                 behind what he thought was a friend of his, and flashed his lights and
                 honked his horn, and the police descended upon him. And they took it from
                 there.



        In response, the State commented to the jury:


                 What was the defendant doing? He was trying to pull over someone who he
                 had never met, didn’t know. For what reason, we don’t know. Because
                 there’sno proof before you that he thought he was trying to, that he thought
                 thiswas a friend. What I say or what Mr. Smith says is not evidence. And we
                 don’t know w he had in m when he w trying to pull Officer Adams
                               hat             ind            as
                 over.




        In the absence of an objection to the State’s response by the defendant, the trial court did not give a

curative instruction to the jury. Ordinarily, this issue would be waived in the absence of a proper objection, but

due to the allegation of an improper comm by the State as to the defendant not testifying, we will address
                                         ent

the merits.



        The State is absolutely prohibited from commenting upon a decision m by the defendant not to
                                                                            ade

testify at trial. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Also, Tennessee

precludes such commentary, both by its constitution and by legislative enactment. Tenn. Const. art. I, § 9;

Staples v. State, 89 Tenn. 231, 14 S.W. 603 (Tenn. 1890); Tenn. Code Ann. § 40-17-103.




                                                        6
        In assessing any error on this issue, we m be guided by the factors set forth in State v. Buck,
                                                  ust

670 S.W 600, 609 (Tenn. 1984):
       .2d


                 (1) The conduct complained of, viewed in light of the facts and
                     circumstances of the case;

                 (2) The curative measuresundertakenbytheCourt and the prosecutor;

                 (3) The intent of the prosecutor in making the improper statement;

                 (4) The cum  ulative effect of the improper conduct and any other errors
                     in the record; and

                 (5) The relative strength or weakness of the case.



        Since there was no objection by the defendant to the State’s comm and no curative measure by
                                                                         ent

the trial court, we will analyze the other four factors.



        (1) The conduct complained of, viewed in light of the facts and

        circumstances of the case, and

        (3) the intent of the prosecutor in making the improper statement.

        Thedefendant, inboth his opening statement and closingargum suggestedto the jurythe reasons
                                                                   ent,

why he stopped Officer Adam However, the defendant failed to provide any evidence to support these
                           s.

statements. The defendant didnot testify, nor through cross-examinationdidthedefendant raise areasonable

inference as to his actions. There is no evidence in the record that the prosecutor acted in bad faith when

making theremarks complained of bythedefendant. The prosecutor pointed out to the jury there was no proof

to support the defendant’s closing argument as to why the defendant followed the police officer. There is no

indication that this rem was made with any m
                        ark                 alicious intent. Therefore, these two factors weigh favorably

for the State.



        (4) The cumulative effect of the improper conduct and any other errors

        in the record, and

        (5) the relative strength or weakness of the case.

        In reviewing the record as a whole, we cannot find that the cumulative effect of all assigned errors

warrants the relief sought by the defendant. As previously noted, the evidence in this trial is quite strong. In


                                                           7
conclusion, we find that the closing remark made onbehalf of the State did not riseto the level of constitutional

error. There is no merit to this issue.



                                                        D.



        In his final assignment of error, the defendant contends the jury’s assessment of a $3,000 fine was

excessive due to the defendant’s impoverished circumstances. The State argues that the defendant’s

indigence is not the controlling factor for the trial court to set aside the jury’s judgment, but all the factors set

forth in the 1989 Sentencing Act.



        Appellate review of sentencing is de novo on the record with a presumption that the trial court’s

determinations are correct. Tenn. Code Ann. § 40-35-401(d). In conducting a de novo review, we must

consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence report, (3)

the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics

of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statements made by the

defendant in his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-

102, -103, and -210; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Moss, 727 S.W.2d

229, 236-37 (Tenn. 1986).



         In this case, we are unable to review adequately the trial court’s sentencing considerations. The

defendant failed to include a transcript of the sentencing hearing. It is the duty of the defendant to prepare

a record which conveys a fair, accurate, and complete account of what transpired at the sentencing hearing

with respect to the issues which form a basis of the appeal. Tenn. R. App. P. 24(b). State v. Miller, 737

S.W 556, 558 (Tenn. Crim. App.), per. app. denied (Tenn. 1987). In the absence of an adequate record on
   .2d

appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence. State v.

Oody, 823 S.W.2d554, 559(Tenn. Crim. App.), per. app. denied (Tenn. 1991). Under these circumstances,

we presume the trial court’s sentencing decision was proper.



        In consideration of the record as a whole, the judgments of the trial court are affirmed.




                                                         8
                                ________________________________________
                                L. T. LAFFERTY, SPECIAL JUDGE


CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




                                  9
