         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE         FILED
                         JUNE 1998 SESSION
                                                   July 22, 1998

                                                Cecil W. Crowson
                                               Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    NO. 01C01-9707-CC-00251
      Appellee,                  )
                                 )    HICKMAN COUNTY
VS.                              )
                                 )    HON. CORNELIA A. CLARK,
C. W. McCALEB,                   )    JUDGE
                                 )
      Appellant.                 )    (Simple Assault)



FOR THE APPELLANT:                    FOR THE APPELLEE:

TERRY B. LARKIN                       JOHN KNOX WALKUP
904 Hwy 48 South                      Attorney General and Reporter
Dickson, TN 37055-3912
                                      DARYL J. BRAND
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      JOSEPH D. BAUGH, JR.
                                      District Attorney General

                                      RONALD L. DAVIS
                                      Assistant District Attorney General
                                      Williamson County Courthouse
                                      Suite G-6
                                      P.O. Box 937
                                      Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendant, C.W . McCaleb, was convicted by a Hickman County jury

of simple assault. The jury fined him $1. The trial court sentenced the

defendant to eleven (11) months and twenty-nine (29) days with the sentence to

be suspended after service of ninety (90) days in the county jail. The defendant

presents three (3) issues in this direct appeal:



       (1) whether the evidence presented at trial was sufficient to support
       the verdict;

       (2) whether the prosecuting attorney presented an improper closing
       argument; and

       (3) whether the trial court properly sentenced the defendant.


The judgment of the trial court is AFFIRMED.



                                      FACTS



       The state’s proof showed the following. The victim, Neal Lovelace, is an

attorney who represented the ex-wife of the defendant’s son in divorce

proceedings. Pursuant to Lovelace’s advice, the defendant’s daughter-in-law

prepared to remove some items from the marital home. The defendant went to

Lovelace’s office to “clarify” to Lovelace that he owned the house and all of its

contents. When Lovelace’s secretary advised the defendant that Lovelace

would not speak with him, the defendant stated in a threatening tone, “[w]ell, if

he won’t talk to me here, I’ll catch him out on the corner.”



       Ten (10) days after the defendant visited Lovelace’s office, Lovelace

encountered the defendant while Lovelace was walking with another attorney,

Jerry Smith. Smith greeted the defendant, but Lovelace remained silent. After

Lovelace had passed, the defendant approached Lovelace from behind and

stated, “I’m going to get you, you curly-headed m_____f_____.” Lovelace

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turned, noted the defendant had a fist clenched and his teeth gritted, and asked

if the defendant was threatening him. Lovelace testified at this point he was in

fear of imminent bodily harm from the defendant. The defendant’s reply to

Lovelace was that he was not threatening him, but that it would not be difficult to

“whip your a__.”



       The defendant offered a different version of the encounter. He denied

doubling his fist and denied threatening Lovelace.



                       SUFFICIENCY OF THE EVIDENCE



       In Tennessee, great weight is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the state's witnesses and resolves all

conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.

1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is

entitled to the strongest legitimate view of the evidence and all reasonable

inferences which may be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of

innocence which the appellant enjoyed at trial and raises a presumption of guilt

on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant

has the burden of overcoming this presumption of guilt. Id.



       Where sufficiency of the evidence is challenged, the relevant question for

an appellate court is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime or crimes beyond a reasonable doubt. Tenn. R.

App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The

weight and credibility of the witnesses' testimony are matters entrusted

exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542,



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547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).



       The defendant was convicted of assault which requires a person to

“[i]ntentionally or knowingly cause another to reasonably fear imminent bodily

injury. . . .” Tenn. Code Ann. § 39-13-101(a)(2). Lovelace testified that through

the defendant’s threatening speech and gestures, he felt that he was about to be

attacked by the defendant. The jury obviously accredited the testimony of

Lovelace over that of the defendant who offered a different version of the

encounter. The elements of assault were established by Lovelace’s testimony.



       This issue is without merit.



                       IMPROPER CLOSING ARGUMENT



       The defendant contends the prosecuting attorney improperly argued to

the jury in his closing argument that Lovelace could lose his license to practice

law if he committed perjury. The defendant failed to object to this argument at

trial; therefore, the issue is waived. Tenn. R. App. P. 36(a). We further find the

argument does not rise to the level of plain error. Tenn. R. Crim. P. 52(b).



       This issue is without merit.



                                  SENTENCING



       The defendant argues the trial court erred in sentencing him because it

erroneously considered convictions over ten (10) years old instead of solely

relying upon the pre-sentence report. He argues this and the uncorroborated

testimony of his enemies caused the trial court to erroneously sentence him to

ninety (90) days incarceration.




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        At the sentencing hearing numerous witnesses testified as to prior

assaults committed by the defendant. These incidents did not result in any

convictions. In addition, the defendant had a 1970 petit larceny conviction and

1968 convictions for assault and battery and a weapons violation.



        This Court’s review of the sentence imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the

trial judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997).



        The trial court made exhaustive findings relating to the sentencing

principles. The court noted that the defendant was presumed eligible for

alternative sentencing, and that his crime was not particularly egregious.

However, the court also noted the defendant had an extensive history of

assaultive behavior and that rehabilitation did not seem likely. In addition to the

defendant’s prior history, the trial court observed that the defendant exhibited a

lack of contrition and credibility, insisting every witness that testified against him

lied.



        Criminal conduct not resulting in convictions may be considered in

sentencing. State v. Carico, ___S.W.2d___(Tenn. 1997); State v. Butler, 900

S.W.2d 305, 312 (Tenn. Crim. App. 1994). Furthermore, the trial court may

properly consider prior convictions as an enhancement factor regardless of their

age. Tenn. Code Ann. § 40-35-114(1); State v. Hoyt Edward Carroll, C.C.A. No.

03C01-9607-CC-00254, Hawkins County (Tenn. Crim. App. filed August 12,

1997, at Knoxville), perm. to app. denied (Tenn. March 2, 1998). The weight to



                                           5
be given such convictions is within the discretion of the trial court. State v

Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996).



       The defendant received the benefit of alternative sentencing. The burden

is on the defendant to establish suitability for total probation. Boggs, 932 S.W.2d

at 477. The defendant’s lack of credibility may properly be considered as it

reflects upon one’s potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301,

306 (Tenn. Crim. App. 1994). We give great deference to the trial court who was

in a position to judge the appearance and demeanor of the defendant. The

defendant has failed to meet his burden of establishing entitlement to total

probation.



       Our review of the record indicates the trial court properly considered the

sentencing principles and all relevant facts and circumstances. The sentence

imposed is entitled to a presumption of correctness. We see no reason to

modify it.



       The judgment of the trial court is AFFIRMED.




                                                  _________________________
                                                  JOE G. RILEY, JUDGE


CONCUR:




___________________________
CURWOOD WITT, JUDGE




___________________________
LEE MOORE, SPECIAL JUDGE



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