          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE             FILED
                            FEBRUARY SESS ION, 1998          May 28, 1998

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,                  )   C.C.A. NO. 03C01-9706-CR-00216
                                     )
            Appellee,                )
                                     )   KNOX COUNTY
V.                                   )
                                     )
                                     )   HON . RICH ARD B AUM GART NER ,
REG INALD SUTT ON,                   )   JUDGE
                                     )
            Appe llant.              )   (HARASS ING CO MM UNICAT IONS)



FOR THE APPELLANT:                       FOR THE APPELLEE:

MARK E. STEPHENS                         JOHN KNOX WALKUP
District Public Defender                 Attorney General & Reporter

JAMIE L. NILAND                          SANDY C. PATRICK
Assistant Public Defender                Assistant Attorney General
1209 Euclid Avenue                       2nd Floor, Cordell Hull Building
Knoxville, TN 37921                      425 Fifth Avenue North
                                         Nashville, TN 37243

                                         RANDALL E. NICHOLS
                                         District Attorn ey Ge neral

                                         MARS HA SEL ECM AN
                                         Assistant District Attorney General
                                         City-County Building
                                         Knoxville, TN 37902




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
         The Defe ndan t, Reg inald Sutto n, appeals from the sentencing order of the

Knox County Criminal Court.          Defendant pled guilty to one count of making

harassing telephone calls.        Following the se ntencing he aring, the trial court

sentenced Defendant to serve eleven (11) months and twenty-nine (29) days, to be

served at seventy-five percent (75%). Defendan t appeals the sentence, arguing

that it does not conform to the requirements of the Criminal Sentencing Reform Act

of 1989, and that the sentence is excessive and should be reduced on appeal or

remanded for a new senten cing hea ring. W e affirm the judgm ent of the tria l court.



         When an accused challenges the length, range, or the manner of service of

a senten ce, this cou rt has a du ty to cond uct a de novo review of the sen tence w ith

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant fac ts and circ umsta nces.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).



         In conducting a de novo review of a sentence, this co urt must con sider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.




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Tenn. Code An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith, 735 S.W .2d

859, 863 (T enn. Crim. A pp. 1987).



       If our rev iew refle cts that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law; and

made findings of fact adequately supported by the record, then we may no t modify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       At the sentencing hearing, Doris Davenport, the victim, testified that she and

the Defendant were living together on July 26, 199 5, and it was their so n’s birthday.

Davenp ort had been requesting that the Defendant move out of her home because

he “has kept [her] going through a lot of changes .” Whe n she got ho me from work

that day, the Defendant came in her house and refused to give her his keys to the

house. Defendant picked up the telephone, and Davenport demanded to know who

he was calling. Defendant replied, “None of your dam n busine ss.” Davenport hung

up the tele phon e, and Defe ndan t spit in her face. Davenport told Defendant, “That

is it. Get out.”



       When Davenport turned her back and walked toward the kitchen, Defendant

grabbed her by her hair and threw her in the floor.        Davenport described that

Defendant held a knife in his hand an d cut her face w hile beating her in the floor.

Davenp ort stated that her two (2) year old son was watching the altercation, and she

kept repeating, “Do not beat me in front of my childre n.” Defendant kept beating her

and said, “I am going to kill you, bitch.” Davenport stated that she did not know what

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made him “snap back,” but that he said, “O h . . . look wha t you have made me do .”




       Defendant grabbed a towel, wiped the floor and then her face becau se there

was blood everywh ere in the kitchen. H e stated, “I am going to get the d amn p olice,”

and ran ou t the do or. Da venpo rt did not see th e Defe ndant a fter that, and he did not

call the police. Davenport called her brother who called an ambulance. She was

treated at the hospital where she received stitches.          Davenport displayed her

remaining facial scars to the cou rt. She stated that she took a warrant out against

the Defend ant the following da y.



       Davenport stated that while she had formerly been convicted of armed robbery

and has been on parole, she has chang ed her life and did not feel that she deserved

to be treated this way. Following the above-described incident, Davenport received

harassing messages from the Defendant on her answering machine.                    These

messages were pla yed for the court. Davenpo rt described D efendant as being very

insecure and previously accusing her of having an affair with a man at work. She

believed that Defendant is “going to hurt somebody . . . and feels like he don’t [sic]

have no respect for the Court or nobody else.” Davenport stated that Defendant

could have killed her and felt like he “sh ould no t get a pat on the back [probation] for

what he did.”



       On cross-examination, Davenport admitted that she had been drinking the day

of the ass ault, but sta ted that sh e was n ot drunk .




                                            -4-
       The Defendant stated that he dated Da venport for over two (2) years and that

they had a child together. On the day of the assault, Defendant got off from work

and drove to Davenport’s home, where he was living at the time. He was on the

phone with his older son who called to ask for a ride home when Davenport came

out of the k itchen and a sked who h e was talking to. W hen h e said that it wa s his

son, Dave nport to ld him , “Tha t is a lie. That is a girl.” Davenport hung up the

telephone and sta rted calling Defendant names, then she returned to the kitchen.

Defendant followed her into the kitchen and as ked wh y she wa s upse t. Defendant

believed she had been drinking and was trying to be reasonable as he believes she

is a violent pe rson.



       Davenp ort did not answer Defendant’s questio n, but s tarted c ursing at him

and s pit in his face. De fendan t spit back in her face , and Da venport re ached onto

the counter for a knife. Defendant took the knife out of her hand, and the two started

fighting. He admitted that Davenport was bleeding, so he tried to wipe off her face.

After Defendant tried to help Davenport clean up, she went into the living room and

called her bro ther. D efend ant sta ted tha t he ha d see n the p olice d rive by, s o he to ld

her he w ould ge t the police .



       When questioned as regarding the harassing phone calls, Defendant stated

that at the particular time he was upset with Davenport because he did care for her

and was upset that she had him put in jail for protecting himself. Defendant stated

that he was trying to let Davenport know that what she did to him was very wrong

and that he w anted to take a warrant out ag ainst her.




                                              -5-
       The trial court sentenced the Defenda nt to serve eleven (1 1) months , twenty-

nine (29) days at a rate of s event y-five pe rcent (7 5%) r eleas e eligib ility date in the

Knox Coun ty Penal Facility. If Defendant chose to attend the Domestic Violence

program offered by the Knox County Sheriff’s Department while incarcerated, the

trial court would co nsider an ea rly release upon successful completion of the

program . The trial co urt mad e the follow ing statem ent:

       W ell, you know, w e have heard different versions of what happened on
       July 26, 1995. I don’t know that, as in a lot of cases, we will ever know
       exactly what happened out there and exactly what precipitated it, but
       we know one thing for certain. That, as a result of that incident, Ms.
       Davenport was beaten about the face. She was cut. She has a scar
       on her face, and this is a classic domestic violence, and it is a very,
       very serious prob lem that we h ave in our society.

       For years, I think w e swe pt it under the rug, or we kept it quiet. It was
       a public embarrassment to the people involved in it. So they c hose to
       keep it quiet, and fo rtunately, I think that is changing. I consider it to be
       one of the most despicable and concerning aspects of our -- one of the
       problems we ha ve in our socie ty today, an d to the extent that I can do
       anything to have a positive effe ct on it, I intend to do that.

       I have listened to this evidence here today. I have considered the pre-
       sentence report. I have considered the conditions of the Sentencing
       Act here, again, including in particular the necessity to avo id
       depreciating the seriou sness o f the offens e. These things don’t happen
       just accide ntally. It is a pattern . It is a course of condu ct.

       Ms. Davenport, you are right. The fact that you had prior convictions
       and are on parole does n’t mean that anybody has got the right to beat
       you. Mr. Sutton is currently, he says, employed, although here at the
       end, that he is not working because of some medical condition. He is
       forty-one years old. He is living w ith his mo ther. His e xpense s in life
       are an autom obile paym ent, and an amou nt he claim s he is pa ying to
       his mo ther as re nt.

       I think you n eed to spend so me time in c ustody, Mr. Sutton. I am going
       to order tha t Mr. Sutton serve this s entence. I am going to order -- I
       can’t order, but I am going to advis e him that I thin k it is in his best
       interest that he attend and complete the Domestic Violence Program
       offered by the Knox County Sheriff’s Department at the Detention
       Facility.

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section

40-35-302 which provid es in part that the trial court shall impose a specific sentence

                                             -6-
consistent with the purposes, principles and goals of the 1989 Criminal Sentencing

Reform Act.     See State v. Palmer, 902 S.W.2d 391, 393 (T enn. 19 95).                In

misdemeanor senten cing, a separate sentencing hearing is not mandatory, but the

court is required to provide the Defe ndant w ith a reasona ble opportun ity to be heard

as to the length and mann er of the se ntence . Tenn . Code Ann. § 4 0-35-30 2(a). In

addition to setting the sentence based on the principles, purposes, and goals of the

Act, the cour t must se t a release eligibility percentag e which can not exceed s eventy-

five percent of the impo sed se ntence . Id. at (d); Palmer, 902 S.W.2d at 393.

Alternatively, the trial court retains the authority to place the defendant on probation

either imm ediate ly or afte r a time of perio dic or continuous confinement. Tenn. Code

Ann. § 4 0-35-30 2(e).



      Defendant argue s that th e only e videnc e the tria l court c onsid ered in

sentencing him was evidence of another crime. The trial court specifically stated

within the record that it considered the presentence report, the conditions of the

Sentencing Act, and, in particular, the need to avoid depreciating the seriousness

of this type of offense.   Defendant did not object to the evidence of another crime

during the sentencing hearing. The record reflects that the p arties and the trial court

agreed in the plea a greem ent tha t the victim would be allo wed to desc ribe the details

of the assault as well as the harassing communications during the sentencing

hearing .



      Defendant also complains that the sentence is excessive. Misdemeanor

sente ncing is designed to provide the trial court with continuing jurisdiction and a

great deal of flexibility. O ne con victed of a m isdem eanor, u nlike one convicted of a

felony, is not entitled to the presumption of a minimum sentence. State v. Creasy,

                                           -7-
885 S.W.2d 829, 832 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 199 4).

Defendant received the maximum sentence as allowed by law due to the

circumstances surrounding the offense and his prior record. T enn. C ode An n. § 40-

35-114(1) and (9 ). Altho ugh th e discu ssion of app licable mitigating and enhancing

factors would be good for our review, it is not a requirement that those factors be

set forth explicitly within the record. State v. McKnight, No. 01C01-9509-CC-00313,

slip. op. at 2, Rutherfo rd County (T enn. Crim. App., at Nashville, June 11, 1996)

perm. to appeal denied, (Tenn . 1997) (c itations om itted). In addition, the trial court

provided for possible early release so long as the Defendant completed a program

on dom estic violen ce.



      Finally, the Defendant argues that the sentence should be reduced or

remanded for a new sentencing hearing . As we have found no error in the trial

court’s sentencing as according to the Sentencing Act under our de novo review,

then we decline to modify th e sente nce im posed . This issu e is withou t merit.



      We affirm the ju dgme nt of the trial co urt.


                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
WILLIAM B. ACREE, JR., Special Judge



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