             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                  FILED
                            JULY 1998 SESSION
                                                              April 28, 1999

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )
             Appellee,         )    No. 03C01-9711-CC-00502
                               )
                               )    Rhea County
v.                             )
                               )    Honorable Buddy D. Perry, Judge
                               )
ROBERT PATTON                  )    (Assault)
a/k/a RED PATTON,              )
                               )
             Appellant.        )



For the Appellant:                  For the Appellee:

Philip A. Contra                    John Knox Walkup
District Public Defender            Attorney General of Tennessee
   and                                     and
Jeffrey Harmon                      Clinton J. Morgan
Assistant Public Defender           Assistant Attorney General of Tennessee
200 Betsy Pack Dr.                  425 Fifth Avenue North
P.O. Box 220                        Nashville, TN 37243-0493
Jasper, TN 37347
                                    James Michael Taylor
                                    District Attorney General
                                            and
                                    Will Dunn
                                    Assistant District Attorney General
                                    265 Third Avenue
                                    Dayton, TN 37321




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Robert Patton a/k/a “Red” Patton, appeals as of right

following his conviction by a jury in the Rhea County Circuit Court for assault, a Class A

misdemeanor. He was originally sentenced to eleven months and twenty-nine days

confinement, however the trial court modified the sentence to six months confinement

in the Rhea County Jail, with the remainder suspended. On appeal, the defendant

contends that (1) the trial court erred by allowing into evidence irrelevant and prejudicial

testimony regarding the reaction of young children who witnessed the altercation in

issue and (2) the trial court erred by not complying with the sentencing statutes and by

not ordering a sentence alternative to confinement. We affirm the judgment of

conviction.



              The defendant’s conviction stems from events occurring at Teddy Smith’s

home. The defendant went to Mr. Smith’s home in search of his girlfriend, Janie

Douglas, in order to retrieve keys to his trailer from Ms. Douglas. When Mr. Smith

asked the defendant to leave, an altercation ensued. The defendant claimed that Mr.

Smith started the altercation, however witnesses for the state testified that the

defendant started the altercation. In any event, a fight ensued, and the defendant was

arrested. At trial, four witnesses testified that the defendant hit Mr. Smith.



                         I. ADMISSION OF IRRELEVANT AND
                              PREJUDICIAL TESTIMONY

              The defendant first contends that the trial court erred by allowing into

evidence testimony from state’s witnesses regarding the reaction of several small

children who witnessed the altercation. He contends that the evidence is irrelevant and

prejudicial. See Tenn. R. Evid. 401, 403. The state argues that the defendant did not




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properly object to the testimony at trial and that the admission of the evidence is

harmless in light of the other proof against the defendant.



              According to Rule 401, Tenn. R. Evid., evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

Relevant evidence may still be excluded “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury . . . .” Tenn. R. Evid. 403. The trial court has discretion in determining whether

evidence meets the test for relevancy. State v. Forbes, 918 S.W.2d 431, 449 (Tenn.

Crim. App. 1995). Assessing the probative value and danger of unfair prejudice

regarding the evidence also falls within the trial court’s discretion. State v. Burlison, 868

S.W.2d 713, 720-21 (Tenn. Crim. App. 1993). This court will only reverse a trial court’s

decision if the trial court abused its discretion. State v. Williamson, 919 S.W.2d 69, 78

(Tenn. Crim. App. 1995).



              The evidence the defendant contests relates to the testimony of state’s

witnesses regarding the reaction of several small children who witnessed the fight. The

state asked three witnesses to describe the reaction of the children, and the witnesses

stated that the children were screaming and crying and were scared. The record

reflects that the defendant’s attorney objected to the testimony on the basis of

relevance, but the trial court overruled the objection.



              We agree with the defendant that the evidence is irrelevant. In fact, the

trial court acknowledged as much during the motion for a new trial. However, the error

is harmless in light of the other evidence presented against the defendant, which

included four witnesses testifying that the defendant attacked the victim. T.R.A.P.

36(b); Tenn. R. Crim. P. 52(a).



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                                     II. SENTENCING

              The defendant contends that the trial court did not comply with statutory

sentencing procedures and that the trial court erred by denying sentencing alternatives.

Specifically, he argues that the trial court did not state on the record its consideration of

relevant sentencing principles, including enhancement and mitigating factors. He also

argues that a sentence ordering him to pay a fine or restitution, a suspended sentence,

a split sentence or work release would be more appropriate. The state contends that

the defendant was properly sentenced.



              Appellate review of misdemeanor sentencing is de novo on the record

with a presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-

401(d), -402(d). As the Sentencing Commission Comments to T.C.A. § 40-35-401(d)

note, the burden is now on the appealing party to show that the sentence is improper.

We note that the law provides no presumptive minimum for misdemeanor sentencing.

See, e.g., State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in

misdemeanor sentencing, the trial court must consider the purposes and principles of

the Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(d).



              At the sentencing hearing, the defendant testified that he was employed

by Straight Line Masonry Company and Goodman’s Air Conditioning. He testified that

he had not had any trouble with the victim since the offense. He assured the trial court

that if he received probation, he would meet with his probation officer and comply with

any requests made of him.



              A presentence report was introduced into evidence. It reflects that the

defendant has nine prior misdemeanor convictions for such offenses as public

intoxication, disorderly conduct, marijuana possession, driving on a suspended license,

and driving on a revoked license. At the conclusion of the sentencing hearing, the trial



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court sentenced the defendant to eleven months and twenty-nine days confinement. At

the motion for new trial hearing, however, the trial court modified the defendant’s

sentence to six months confinement with the remainder suspended.



              Upon a review of the record, we believe that the trial court complied with

the sentencing statutes. See State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998)

(“while the better practice is to make findings on the record when fixing a percentage of

a defendant’s sentence to be served in incarceration, a trial court need only consider

the principles of sentencing and enhancement and mitigating factors in order to comply

with the legislative mandates of the misdemeanor sentencing statute”). The record

shows that the trial court considered the defendant’s lengthy criminal history, which

included nine misdemeanor convictions. This criminal history more than justifies the

defendant’s sentence and the manner in which it is to be served. We believe that the

defendant has failed to demonstrate that the trial court’s sentence is erroneous.



              In consideration of the foregoing and the record as a whole, the judgment

of conviction is affirmed.



                                                       __________________________
                                                       Joseph M. Tipton, Judge


CONCUR:



_________________________
Gary R. Wade, Presiding Judge



_________________________
David H. Welles, Judge




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