         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   December 13, 2000 Session

                 STATE OF TENNESSEE v. MICHAEL S. NEVENS

                      Appeal from the Circuit Court for Williamson County
                          No. II-74-599    Timothy L. Easter, Judge



                      No. M2000-00815-CCA-R3-CD - Filed April 27, 2001


The defendant appeals from his conviction for theft of a bottle of tea, contesting the jury instructions,
the effectiveness of his trial counsel, the state’s cross-examination of defense witnesses, the state’s
closing argument and the trial court’s failure to rule upon a subsequent objection, and his sentence.
Because the trial court erred in instructing the jury, we reverse the defendant’s conviction and
remand the case to the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                        Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

David L. Raybin, Nashville, Tennessee, for the appellant, Michael S. Nevens.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Derek Keith Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

         The defendant, Michael S. Nevens, appeals as of right from his conviction by a Williamson
County jury for theft of property valued five hundred dollars or less, a Class A misdemeanor. The
trial court sentenced the defendant to eleven months, twenty-nine days at seventy-five percent,
ordering the sentence to be suspended and served on probation except for seven days. The
conditions of the defendant’s probation included performing fifty hours of community service, being
subjected to random drug screens, and staying out of all Kroger stores. The defendant contends that
(1) the trial court erred by failing to instruct the jury on the defense of mistake of fact, (2) he received
the ineffective assistance of counsel because his counsel did not make a special request for an
instruction on the mistake of fact defense, (3) the state improperly cross-examined him and his
mother about the possibility of filing a civil suit against Kroger, (4) the state improperly referred to
the grand jury during its closing argument and the trial court failed to rule upon his objection to such
argument, ordering his counsel to sit down, and (5) his sentence of seven days of incarceration is
excessive.

         This case concerns a bottle of tea in a Kroger store. At trial, Officer Larry Campbell of the
Brentwood Police Department testified as follows: On February 6, 1999, he was off duty and
working at Kroger in plain clothes to detect shoplifting. He saw the defendant and a female, whom
he later discovered to be the defendant’s mother, drinking NesTeas as they shopped. He noticed that
the defendant appeared nervous and kept looking around. While he was in the shampoo aisle with
the defendant and the defendant’s mother, the defendant’s mother leaned down to look at a product,
at which point the defendant glanced in each direction, finished his tea, placed the lid on the tea,
looked around again, and then placed the tea bottle on the back of a shelf. The defendant then got
a jar of jelly from the grocery cart and placed the jar on the shelf, hiding the tea bottle.

        Officer Campbell testified that the defendant and his mother walked toward the cash registers
but that the defendant then left his mother and walked toward the shampoo aisle. He said that before
the defendant got to the aisle, the defendant stopped, looked around, and then walked toward the exit
through an opening between the cash registers and a banking area. The defendant met his mother,
who had gone through a check-out lane, and they left the store. Officer Campbell testified that he
retrieved the tea bottle and jar of jelly from the shelf and that he and the store manager, Mr. Bunch,
went outside the store and approached the defendant and his mother. He asked the defendant’s
mother if the defendant was her son, and when she responded that he was, he told her that the
defendant drank a tea and did not pay for it. She looked at the defendant, and the defendant said, “I
was going to pay for it.” Officer Campbell then said, “But you didn’t pay for it. You hid it in the
aisle back here,” to which the defendant stated again that he was going to pay for it. He then asked
the defendant to come inside the store to talk.

        Officer Campbell testified that Mr. Bunch took the Nevens’ groceries to the cooler and that
he, Mr. Bunch, the defendant, and the defendant’s mother went to an office on the second floor,
where the defendant and his mother became argumentative. He stated that he took the defendant into
an adjacent room, leaving the door connecting it to the office open, and that the defendant signed a
citation. Officer Campbell said that he then completed a Kroger incident report, in which he wrote
that the defendant said that he was going to pay for the tea. Although the defendant had agreed to
sign the incident report, his mother came into the room, took the report from the defendant, and said
that she did not agree with its contents. The defendant then refused to sign the report. Officer
Campbell testified that the defendant never said that his mother was supposed to pay for the tea.

       On cross-examination, Officer Campbell testified that when he confronted the defendant and
his mother, he did not know where they had gotten the teas or whether the mother had paid for them,
admitting that he did not know what the defendant’s mother said to the cashier when she paid for the
groceries. He stated that he admitted at the preliminary hearing that it was possible that the
defendant had asked his mother why she did not pay for the tea. He acknowledged that neither the
incident report nor his preliminary hearing testimony mentioned that the defendant appeared nervous


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while shopping. He stated that when they were in the office, the defendant’s mother gave the grocery
receipt to Mr. Bunch, and Mr. Bunch refused to give the receipt back to her.

        Richard Jason Bunch testified as follows: On February 6, 1999, while working as an
assistant manager at Kroger in Brentwood, Officer Campbell told him that he had seen a person, later
determined to be the defendant, drink a bottle of NesTea and then hide it on a shelf. Officer
Campbell said that he was going to stop the defendant when the defendant left the store and asked
him to witness the stop. Mr. Bunch saw the defendant’s mother, Ms. Nevens, pay for her groceries
and then meet the defendant, who did not go through the check-out lane, near the exit. Officer
Campbell stopped the defendant and his mother after they left the store and asked them to talk with
him inside the store. Mr. Bunch did not remember what Officer Campbell or the defendant said
outside the store but recalled that the defendant and Ms. Nevens were upset. He, Officer Campbell,
Ms. Nevens, and the defendant went to a second-floor office, where the defendant and Ms. Nevens
became very upset, rude, and loud. Ms. Nevens said that she had gotten the teas and paid for the
groceries, so if anyone were to be arrested, it should be her. At some point, Ms. Nevens got the
grocery receipt from the defendant and gave it to him. The receipt indicated that only one NesTea
was purchased. Ms. Nevens asked him to give her the receipt back, but he refused because he had
given Ms. Nevens, upon her request, a refund for her groceries. He also refused to give her a copy
of the receipt. He said that he did not remember hearing the defendant say that his mother was
supposed to pay for the tea. On cross-examination, Mr. Bunch stated that it was possible that Ms.
Nevens told him to look at the receipt to determine whether she had paid for two NesTeas.

        Mike Tidwell testified that he was working as a cashier at the Brentwood Kroger on February
6, 1999, and that Ms. Nevens, who was a regular customer, paid him for her groceries. He stated that
it was common for customers to eat or drink something while shopping, leave the package in their
cart, and pay for the item when they checked out. He said that Ms. Nevens was talking to a friend
in the check-out lane while he scanned her groceries, including one empty bottle of tea. He testified
that he was absolutely positive that Ms. Nevens did not tell him to charge her for two teas. On cross-
examination, Mr. Tidwell testified that the defendant did not go through the check-out lane with his
mother.

         Anita Louise Nevens, the defendant’s mother, testified as follows: On February 6, 1999, she
took the defendant to Kroger to buy groceries for him. The defendant was a student at Middle
Tennessee State University and was returning to school that evening. When they were in the produce
department, she told the defendant that she was going to get a drink. She walked to the other side
of the store and got two teas, and then she stopped in the pharmacy area to read about vitamins. She
eventually found the defendant and gave him a tea. When she finished her tea, she placed the empty
bottle in the cart, which was her normal practice. Then when they were on the shampoo aisle, the
defendant told her that he found a cheaper jar of jelly than the jar that he had placed in the cart earlier
and that he was going to put back the more expensive jar. The defendant then placed the jelly and
the tea bottle on a shelf and began showing her some of the items that he had placed in the cart. As
they were talking, she realized that she needed to leave soon, and she asked the defendant if he had
found the pizza crusts, to which he responded that he had not. She then asked a Kroger employee,


                                                   -3-
who was the cashier whom she later paid for the groceries, where the pizza crusts were located.
After picking up the pizza crusts, they went to pay for the groceries.

         Ms. Nevens testified that when they got to the check-out lane, she sent the defendant to get
dishwashing detergent, which he did. She talked to the cashier while he scanned her items, and she
told him that she had two teas. She did not see whether the cashier scanned the tea bottle. As she
and the defendant were leaving the store, a man in plain clothes identified himself as a policeman
and asked her if the defendant was her son. The man, Officer Campbell, told her that the defendant
drank a tea and left without paying for it. The defendant then said, “Mom, I thought you paid for
that.” After a brief discussion outside the store, she and the defendant went to a second-floor office
with Officer Campbell and Jason Bunch, the store manager. In the office, she told Mr. Bunch that
she had told the cashier she had two teas. She then gave Mr. Bunch her receipt, and he told her it
showed that only one tea was purchased. When she asked for the receipt back, he would not give
it to her. At some point, Officer Campbell took the defendant to an adjacent room. After some time,
she went into that room and asked what they were doing. The defendant said that the officer was
trying to get him to sign a statement but that he was not going to sign it because it was incorrect. The
defendant handed her the report, and she agreed with the defendant that the statement was incorrect.
She told Officer Campbell that the defendant would not sign it.

       Ms. Nevens testified that after returning home and discussing the incident with her husband,
she and her husband returned to Kroger and talked to Mr. Bunch, who suggested to them that he
would take care of the criminal charges. She stated that she, her husband, and the defendant met
with an attorney to discuss the possibility of suing Kroger but that they had not filed a lawsuit.

        The defendant testified as follows: On February 6, 1999, he went to a basketball game with
his father and brothers and then went to the Brentwood Kroger with his mother, who was going to
buy him groceries. While he was shopping in the produce section, his mother said she was going
to get something to drink. About ten to twelve minutes later, she returned and gave him a tea, which
he drank as he shopped. At the end of the shampoo aisle, there was a display with jars of jelly on
sale. Because that jelly was cheaper than the one that he had gotten earlier, he placed the more
expensive jar of jelly on an empty portion of a shelf, explaining that he did not want to walk to the
other side of the store to return the first jelly to the shelf from which he got it. At this time, he also
placed his tea bottle on the shelf. He did not hide the tea bottle with the jelly jar or push the tea to
the back of the shelf. His mother was with him when he placed these items on the shelf.

       The defendant testified that he went through the check-out lane with his mother, although
he was not with her the entire time because he went to get dishwashing detergent while the cashier
was scanning their groceries. He stated that after they left the store, Officer Campbell stopped them
and asked his mother if the defendant was her son. She responded that he was, and then Officer
Campbell said that the defendant drank a tea and did not pay for it, at which point he looked at his
mother and said, “I thought you had paid for this.” He said that he thought his mother had gone
through a check-out lane and paid for the tea when she got it because she was gone for ten to twelve
minutes from the time she left to get a drink until she gave him the tea.


                                                   -4-
       The defendant testified that he, his mother, Officer Campbell, and Mr. Bunch went to a
second-floor office. The defendant said that at some point, Officer Campbell took him into an
adjacent room, where he signed a citation. Officer Campbell asked him to sign an incident report,
in which Officer Campbell had written that the defendant said he was going to pay for the tea. He
refused to sign the report because the statement Officer Campbell had written was not true.
Eventually, his mother came into the room and looked at the report, but she did not jerk it from his
hands.

         On cross-examination, the defendant testified that his first job was at a Kroger store and that
it was common for people to eat or drink something as they shopped. He stated that he would not
think it suspicious if a person placed an empty bottle on a shelf because he would assume that the
person already paid for the item. He said that when he placed the tea bottle on the shelf, he thought
that his mother had paid for it, although he admitted that he knew when she drank a beverage while
shopping, she usually placed the empty container in the cart and paid for beverage with her other
groceries. The defendant stated that he was present at a meeting with his parents and an attorney in
which they discussed filing a civil suit against Kroger.

       Carolyn Hankins, a neighbor of the Nevens, testified that she had known the Nevens family
for more than fifteen years. She said that Ms. Nevens and the defendant were honest and that she
had never known either to lie.

         The state recalled Jason Richard Bunch and Officer Larry Campbell. Mr. Bunch testified that
while they were in the second-floor office, Ms. Nevens commented that the drink only cost $1.09
and that “this was only a misdemeanor.” He said that Ms. Nevens asked him to look at the receipt
to see if she had paid for two teas but that she never asked him to question the cashier regarding what
she told him.

        Officer Campbell testified that according to his notes, which he made on the evening of the
theft, Ms. Nevens made several comments while in the second-floor office, including that she was
a regular customer and would pay for the tea, that the tea was only $1.09, that she took the tea out
of the case, and that the offense was only a misdemeanor. He stated that Ms. Nevens also questioned
how he knew that the tea was not hers.

       Anita Louise Nevens was recalled and testified that she did not make any of the statements
that Officer Campbell testified she made. She stated that she did not know the definition of a
misdemeanor.

                                    I. JURY INSTRUCTIONS

        The defendant’s primary argument concerns the omission of a jury instruction on the mistake
of fact defense. He argues that because the evidence fairly raised the mistake of fact issue, the trial
court erred by failing to instruct the jury on this defense. The state contends that the evidence did



                                                  -5-
not fairly raise the defense of mistake of fact, and even if it did, the failure to instruct the jury about
it was harmless.

        It is well established in Tennessee that the defendant’s constitutional right to trial by jury
includes having the trial court give a correct and complete charge of the law applicable to the facts
of the case. See State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). This means that the defendant
has a right to have each issue of fact raised by the evidence and material to his defense submitted to
the jury upon proper instructions by the trial court. State v. Brown, 836 S.W.2d 530, 553 (Tenn.
1992); see Poe v. State, 370 S.W.2d 488, 491 (Tenn. 1963) (holding that it was the trial court’s duty
to give “proper jury instructions upon issues fundamental to the defense and essential to a fair trial”
even when such instructions were not requested). Ignorance or mistake of fact is a defense to
prosecution, and the trial court must instruct the jury on the defense if it is fairly raised by the proof.
Tenn. Code Ann. §§ 39-11-203(a), (c), -502. In determining whether a defense is fairly raised by
the proof, a trial court should consider the evidence in the light most favorable to the defendant.
State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993). Moreover, if an instruction is
warranted, the court must instruct the jury that any reasonable doubt on the existence of the defense
requires acquittal. Tenn. Code Ann. § 39-11-203(d).

        Ignorance or mistake of fact is “a defense to prosecution if such ignorance or mistake negates
the culpable mental state of the charged offense.” Tenn. Code Ann. § 39-11-502(a). In this case,
the defendant was charged with theft of property, which a person commits “if, with intent to deprive
the owner of property, the person knowingly obtains or exercises control over the property without
the owner’s effective consent.” Tenn. Code Ann. § 39-14-103.

        The evidence in this case fairly raised the defense of mistake of fact. The defendant testified
that while he was shopping, his mother left him for ten to twelve minutes, leading him to believe that
she paid for the tea before she gave it to him. Also, evidence was presented that the defendant was
not in the check-out lane when his mother, who testified that she told the cashier to charge her for
two teas, paid for the groceries. The defendant and his mother testified that when they were
confronted by Officer Campbell outside the store, the defendant said that he thought his mother paid
for the tea. If the defendant were mistaken about this fact, this mistake would negate the intent to
steal. The jury should have been instructed that any reasonable doubt as to the existence of the
defendant’s mistake of fact required an acquittal.

         The state contends that the failure of the trial court to provide an instruction on mistake of
fact was harmless. The state argues that the jury engaged in the same fact-finding analysis that a
mistake of fact instruction would have required because the jury was instructed on the affirmative
defense of claim of right as well as that the state had to prove the elements of theft, including the
mental state, beyond a reasonable doubt. Thus, the state argues, the jury was aware of the
defendant’s claim that he believed the tea had been paid for, but, nonetheless, to convict the
defendant, the jury had to determine beyond a reasonable doubt that the defendant intended to steal
the tea.



                                                   -6-
        The error of failing to instruct the jury regarding the mistake of fact defense denied the
defendant his constitutional right to trial by jury. See Teel, 793 S.W.2d at 249. Further, due process
requires that a criminal defendant be afforded a meaningful opportunity to present a complete
defense, which includes the right to have the jury instructed regarding fundamental defenses raised
by the evidence. See Connecticut v. Johnson, 460 U.S. 73, 85-88, 103 S. Ct. 969, 976-78 (1983);
Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir. 1999); see also Poe, 370 S.W.2d at 491. Thus, the
burden is on the state to show that the error is harmless beyond a reasonable doubt. See Chapman
v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967); State v. Howell, 868 S.W.2d 238, 253
(Tenn. 1993).

         In this case, the trial court did not instruct the jury on the mistake of fact defense, which
would have included that the state must prove beyond a reasonable doubt that the defendant did not
act through a mistake of fact. However, the court did instruct the jury, upon the defendant’s trial
counsel’s request, on the affirmative defense of claim of right – that it was a defense to prosecution
if the defendant acted under an honest claim of right to the property or acted in the honest belief that
he had the right to obtain or exercise control over the property as he did. Included in the claim of
right instruction, however, was the fact that the burden was on the defendant to prove the defense
by a preponderance of the evidence. The state’s argument that the jury went through the same
analysis that it would have gone through had the mistake of fact instruction been given fails to
appreciate the difference in the burdens of proof, which is substantial, especially in light of the
balanced proof. Moreover, instructing the jury on the elements of theft and that the state had the
burden of proving all the elements beyond a reasonable doubt does not render the failure to instruct
on mistake of fact harmless. The trial court’s instructions did not identify the mistake of fact issue
and place it before the jury. Critically, the jury was not instructed that any reasonable doubt as to
the existence of the defense of mistake of fact required acquittal. We conclude that the error in
failing to instruct the jury on the mistake of fact defense is not harmless beyond a reasonable doubt.
Accordingly, we reverse the defendant’s conviction and remand the case to the trial court.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        The defendant contends that he received the ineffective assistance of counsel at trial because
his counsel failed to request an instruction on mistake of fact. In light of the reason for our reversing
the conviction, we conclude that this issue is moot. That is, whether we are subsequently affirmed
or reversed if a further appeal is sought, the defendant’s claim of ineffective assistance of counsel
regarding the instruction would avail him nothing further. We need not rule upon a moot issue.

                           III. IMPROPER CROSS-EXAMINATION

        The defendant contends that the trial court improperly allowed the state to cross-examine him
and his mother about whether they had talked to an attorney regarding the possibility of filing a civil
suit against Kroger. Ms. Nevens testified that she and her husband met with an attorney but that they
had not filed a civil suit. The defendant testified that he was present when his parents talked with
an attorney about the possibility of filing a civil suit against Kroger. The defendant argues that this


                                                  -7-
evidence was irrelevant and prejudicial. The state contends that the trial court properly allowed the
cross-examination, finding that such testimony was relevant on the issue of credibility.

        The propriety, scope, manner, and control of cross-examination of witnesses rests within the
sound discretion of the trial court. Coffee v. State, 188 Tenn. 1, 4, 216 S.W.2d 702, 703 (1948);
State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App.1995). The scope of cross-examination
extends to “any matter relevant to any issue in the case, including credibility.” Tenn. R. Evid.
611(b). Moreover, a party “may offer evidence by cross-examination, extrinsic evidence, or both,
that a witness is biased in favor of or prejudiced against a party or another witness.” Tenn. R. Evid.
616.

        In State v. Horne, 652 S.W.2d 916 (Tenn. Crim. App. 1983), the trial court did not allow the
defendant, who was on trial for aggravated assault, to cross-examine the victim about whether the
victim had filed a civil suit against him, finding that the evidence was irrelevant. This court held that
the trial court should have allowed the questions, stating that “great latitude is allowed in cross-
examination, particularly cross-examinations showing the witness’ interest or bias.” Id. at 918
(noting that in civil cases, “it is said that the right to show bias or prejudice should only be limited
in extraordinary circumstances”). The court cited several treatises to be “in accord that for the
purpose of showing interest, or bias, a witness for the prosecution in a criminal case may be
questioned as to whether he has brought an action against the accused, based on the acts involved
in the criminal case.” Id. (citations omitted).

        In State v. Russell, 735 S.W.2d 840 (Tenn. Crim. App. 1987), the defendant was on trial for
committing aggravated assault by shooting a police officer. The trial court allowed the state to cross-
examine the defendant’s husband about a civil rights lawsuit that he and the defendant had filed
against the sheriff’s office. This court held that the trial court “did not err in allowing evidence of
a pending lawsuit when it arises out of the same circumstances as the matter before [it] and goes to
the issue of bias.” Id. at 842; see also Neil P. Cohen et al., Tennessee Law of Evidence §616[4][d],
at 6-170 (4th ed. 2000) (“If a witness has a stake in the outcome of the lawsuit, that potential source
of bias or prejudice can be explored for impeachment purposes. . . . One example is the witness who
is involved in another pending lawsuit based on the same facts at issue in the case in which the
witness is testifying.”).

        In this case, unlike in Horne and Russell, a civil suit was not pending. The state cross-
examined defense witnesses about discussing with an attorney the possibility of filing a civil suit
against Kroger. While no Tennessee cases address this distinction, courts from other jurisdictions
have, and a majority have found that evidence that a witness in a criminal case has contemplated
filing a civil suit regarding the matter of the criminal case is admissible to show the witness’s
possible bias. See, e.g., State v. Arlington, 875 P.2d 307, 316 (Mont. 1994) (stating that allowing
evidence that a witness has contemplated filing a civil suit to show the witness’s potential bias is the
majority view); State v. Guizzotti, 803 P.2d 808, 811 (Wash. Ct. App. 1991) (stating that the
majority rule is to allow a witness to be questioned regarding whether he has contemplated filing a
civil suit to show the witness’s potential bias). See generally, Sullivan v. United States, 404 A.2d


                                                  -8-
153, 161 (D.C. Cir. 1979); State v. Milum, 500 A.2d 555, 560-61 (Conn. 1985); Duncan v. City of
Birmingham, 384 So. 2d 1232, 1238 (Ala. Crim. App. 1980); Wooten v. State, 464 So. 2d 640, 462
(Fla. Dist. Ct. App. 1985); State v. Liuafi, 623 P.2d 1271, 1274-75 (Haw. Ct. App. 1981); State v.
McLemore, 164 P. 161, 163 (Kan. 1917); State v. Doughty, 399 A.2d 1319, 1323 (Me. 1979); People
v. Richmond, 192 N.W.2d 372, 374-75 (Mich. Ct. App. 1971); State v. Underwood, 281 N.W.2d
337, 341 (Minn. 1979); State v. Decker, 143 S.W. 544, 544-45 (Mo. Ct. App. 1912); State v. Hart,
80 S.E.2d 901, 902-03 (N.C. 1954); State v. Ferguson, 450 N.E.2d 265, 269-70 (Ohio 1983). We
believe that this majority position is consistent with allowing “great latitude . . . in cross-
examination, particularly cross-examinations showing the witness’ interest or bias.” Horne, 652
S.W.2d at 918. We conclude that the trial court did not err in allowing the state to cross-examine
the defendant and his mother regarding whether they had talked to an attorney about suing Kroger.

                          IV. IMPROPER CLOSING ARGUMENT

        The state concluded its closing argument with the following: “I ask you to find him guilty
of what the grand jury for the State of Tennessee indicted him for, which was the offense of theft
under $500.” The defendant immediately objected to this argument. The state attempted to respond
to the objection before defense counsel had finished talking, resulting in both attorneys talking
simultaneously. The trial court, without ruling on the objection, told both attorneys to sit down, and
then within a few seconds, it began instructing the jury, stating, “The State of Tennessee versus
Michael S. Nevens, ladies and gentlemen of the jury, the defendant, Michael S. Nevens, is charged
in Count 1 of the presentment with the offense of theft under $500.”

        The defendant contends that this episode prejudiced him. He argues that the jury may have
inferred guilt from the state’s reference to the grand jury indictment. Further, he argues that the
statement’s prejudicial impact was increased because the trial court failed to sustain his objection
and provide a curative instruction. Finally, the defendant argues that when the trial court told the
attorneys to sit down immediately following his objection, it demeaned his attorney, and thus, it
demeaned him. The state concedes that its reference to the grand jury indictment was improper but
contends that any error was harmless.

         Initially, we note that the state’s improper comment was a very small part of its closing
argument. Indeed, the record reflects the comment amounted to one sentence of an argument that
lasted more than fifteen minutes. Furthermore, while the defendant argues that the trial court should
have ruled on the defendant’s objection when it was made, the defendant did not ask the trial court
to rule on his objection or make any further comment about it. See T.R.A.P. 36(a) (“Nothing in this
rule shall be construed as requiring relief be granted to a party responsible for an error or who failed
to take whatever action was reasonably available to prevent or nullify the harmful effect of an
error.”). Moreover, the trial court instructed the jury that the “presentment in this case is the formal
written accusation, charging the defendant with the crime. It is not evidence against the defendant
and does not create any inference of guilt.” Finally, the trial court’s order for the attorneys to sit
down was directed at both attorneys. Our review of the taped proceedings reveals that the trial
court’s comment was not loud or disrespectful but was to stop the attorneys from simultaneously


                                                  -9-
talking about the merits of the defendant’s objection. We conclude that the error, if any, regarding
the grand jury remark was harmless.

                                        V. SENTENCING

       The defendant contends that his sentence of seven days incarceration is excessive. The state
contends that the trial court properly sentenced the defendant.

        At the sentencing hearing, Pattie Burns testified that on February 6, 1999, she was in charge
of security at the Brentwood Kroger. She stated that after the defendant’s trial, she walked past the
defendant, who was visibly upset, in the hallway, and the defendant raised his hand toward her and
said, “You bitch.” She then went immediately to the district attorney’s office and filed a formal
complaint.

        Officer Larry Campbell testified that he was walking with Ms. Burns after the defendant’s
trial. He said that the defendant raised his fist and said to him, “You punk.” Officer Campbell
responded, “Don’t go there,” and then the defendant said to Ms. Burns, “You bitch.” He told Ms.
Burns to keep walking and that they should report the incident to the district attorney.

         Robert Nevens, the defendant’s father, testified that the defendant was a good son and knew
right from wrong. He acknowledged that the defendant had been arrested for driving while impaired,
underage possession of alcohol, underage consumption of alcohol, and simple possession of
marijuana, all arising from one incident. He said that the defendant was granted pretrial diversion
for these offenses in June 1998, and that the defendant took responsibility for his actions and had not
been in trouble since that arrest, although he admitted that the defendant was on probation when the
incident at Kroger occurred in February 1999. Mr. Nevens stated that he was in the hallway after
the trial and that the defendant did not direct any comments to Ms. Burns or Officer Campbell. He
said that when the Kroger employees passed the defendant, they were smiling and laughing, at which
point the defendant commented to himself, “Son of a bitch.”

       Anita Louise Nevens, the defendant’s mother, testified that the defendant graduated from
high school and was attending Middle Tennessee State University. She said that he had worked part-
time during the school years and summers since he was fifteen years old. She stated that the
defendant was a gifted artist and had won several awards. She said that the defendant was an
average student but that his grades had gotten worse since the Kroger incident.

        At the conclusion of the testimony, the trial court had the defendant submit to a drug test.
The results were positive for marijuana but negative for cocaine, morphine, and amphetamines. The
trial court sentenced the defendant to eleven months, twenty-nine days at seventy-five percent,
ordering the sentence to be suspended and served on probation except for seven days. The
conditions of the defendant’s probation included performing fifty hours of community service, being
subjected to random drug screens, and staying out of all Kroger stores. The defendant only contests
the seven days incarceration, asserting that this portion of his sentence is excessive.


                                                 -10-
        In reviewing whether the trial court properly sentenced the defendant, we conduct a de novo
review of the record with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This
presumption of correctness is conditioned upon the affirmative showing that the trial court
considered the relevant facts, circumstances, and sentencing principles. State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In misdemeanor sentencing, the trial court is not required to place specific
findings on the record. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). A defendant seeking
full probation bears the burden on appeal of showing that the sentence imposed is improper and that
full probation will be in the best interest of the defendant and the public. State v. Baker, 966 S.W.2d
429, 434 (Tenn. Crim. App. 1997).

        In this case, the trial court found no enhancement factors and one mitigating factor, that the
defendant’s conduct did not cause or threaten serious bodily injury. Tenn. Code Ann. § 40-35-
113(1). The trial court then discussed the sentencing purposes and considerations set forth in Tenn.
Code Ann. §§ 40-35-102, -103 to determine whether full probation was appropriate. The trial court
found the defendant’s family support, the amount stolen, and the fact that the defendant was pursuing
his college education weighed in favor of full probation. However, the trial court also found several
factors weighing against full probation. Relying upon the defendant’s comments to the Kroger
employees after his trial and his actions during the sentencing hearing, which included him being
“called down by his lawyer today in the courtroom,” the trial court found that the defendant had
shown no remorse. The court further found that the defendant committed the offense while on
probation and that the defendant tested positive for marijuana at the sentencing hearing, showing that
the defendant had little regard for the laws of the state.

         The trial court considered the relevant facts, circumstances, and sentencing principles, and
its findings are supported by the record. The defendant committed the offense approximately eight
months after being placed on probation. See Tenn. Code Ann. § 40-35-103(1)(C). Also, the
defendant showed no remorse for his offense, and he tested positive for marijuana on the date of the
sentencing hearing. These circumstances reflect poorly upon the defendant’s potential for
rehabilitation. See Tenn. Code Ann.§ 40-35-103(5). The defendant has not carried his burden in
showing that a sentence of a short period of confinement followed by probation is improper.

         Based upon the foregoing and the record as a whole, because the trial court failed to instruct
the jury on the mistake of fact defense, we reverse the defendant’s conviction and remand the case
to the trial court.


                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




                                                 -11-
