        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                         JULY SESSION, 1997


STATE OF TENNESSEE,        )
                                                        FILED
                                C.C.A. NO. 02C01-9607-CR-00245
                           )                        September 10, 1997
      Appellee,            )
                           )                            Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
                           )    SHELBY COUNTY
VS.                        )
                           )    HON. BERNIE WEINMAN
LESLIE THOMPSON,           )    JUDGE
                           )
      Appellant.           )    (Assault)


               ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

BILL ANDERSON, JR.              JOHN KNOX W ALKUP
138 North Third Street          Attorney General and Reporter
Memphis, TN 38103
                                JANIS L. TURNER
                                Assistant Attorney General
                                425 5th Avenue North
                                Nashville, TN 37243

                                JOHN W. PIEROTTI
                                District Attorney General

                                P.T. HOOVER
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Street
                                Memphis, TN 38103


OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                              OPINION

         The Defendant, Leslie Thompson, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure. He was convicted by a Shelby

County jury of two counts of assault.1 The trial court sentenced him as a Range

I standard offender to six months imprisonment in the county workhouse for each

count, with the sentences to run concurrently. The trial court also imposed a two

hundred fifty dollar ($250) fine for each count. In this appeal, the Defendant

argues that the trial court erred both in permitting the State to question his

character witness about knowledge of his prior bad acts and in sentencing him

to six months incarceration. After reviewing the record, we conclude that the

Defendant’s issues lack merit. Accordingly, we affirm the judgment of the trial

court.



         W e begin with a summary of the pertinent facts. Over Labor Day weekend

in 1994, the Defendant accompanied two minor boys, J.A. and S.B., 2 from

Henderson, Texas to Memphis, Tennessee.                                 The victims were students at

Henderson High School at the time, and the Defendant was employed as a choir

teacher at their school. The victims met the Defendant through the choir. The

Defendant suggested that they go to Memphis for the experience of seeing

another choir sing in front of an audience. According to the testimony of J.A.’s

mother, the Defendant stated that the trip was being funded by the school.




         1
             Tenn . Code A nn. § 39-13-101(a)(3).

         2
           It is th e policy of this Co urt not to refer to m inor vic tim s by nam e. W e will refer to th e victim s
in this case as “J .A.” an d “S.B.,” or s imply as “the victim s.”

                                                         -2-
      The Defendant and the victims left Texas late on Friday night, drove

through the night, and arrived in Memphis on Saturday morning. They stayed at

the Defendant’s sister’s home in Memphis. On Saturday afternoon, they went to

a church to hear the Defendant sing, but the victims did not practice or sing with

the choir. The Defendant and the victims went out on Saturday evening to see

Memphis. W hile they were touring Memphis, the Defendant bought beer and

cigarettes for the victims. At the conclusion of the evening, they cam e back to

the Defendant’s sister’s home and went to bed. The victims shared a bedroom

with its own bathroom, and the Defendant slept in a separate bedroom.



      They awoke on Sunday and went to church to hear the Defendant sing.

After church, they toured more of Memphis and later attended a social function

where the Defendant sang again. They went to a movie after the social function.

After the movie, the Defendant bought the victims wine coolers and they drove

around Memphis. The Defendant began to bring up matters of a sexual nature

as they were conversing. He bought the victims more wine coolers, and they ate

late that night shortly before returning to the Defendant’s sister’s home.



      Once home, the Defendant joined the victims in their bedroom. All three

of them were dressed for bed. The Defendant sat down on the bed next to S.B.

and told him that he loved him and that “if there is anything that you ever need

just tell me.” The Defendant began to rub S.B.’s chest and thigh. As he was

rubbing S.B.’s thigh, the Defendant began to rub “around the crotch area.” At

that point, S.B. feigned that he was drunk and turned over. The Defendant then

moved to J.A.’s side of the bed. He rubbed the inside of J.A.’s thigh and his

penis. J.A. acted like he was asleep.

                                        -3-
      The Defendant then got up from the bed and went into the bathroom

attached to the victims’ bedroom. The victims heard noises which indicated to

them that the Defendant was masturbating.          Five to ten minutes later the

Defendant exited the bathroom and left the victims’ bedroom. S.B. and J.A. were

alarmed and agreed that they needed to get out of the house immediately. They

did not want to risk leaving the bedroom to escape the house, however, so they

ripped the screen of a window in their bedroom. They left the house wearing only

their bedclothes and shoes.



      Upon leaving the house, the victims ran to a nearby gas station. The

police were called and arrived there a short time later. The victims explained

what had happened to the police officers. As they were doing so, the Defendant

drove by in his truck and the victims pointed him out to the police. Russell Duvall,

an officer with the Shelby County Sheriff’s Department, pursued and stopped the

Defendant. According to Duvall, when he stopped the truck, the Defendant

asked him if he had seen two young men because two individuals staying with

him that weekend had just run away. Police officers then went to the Defendant’s

sister’s home to investigate the matter and discovered that one of the window

screens had been ripped apart. There were no signs of a struggle in the home.



      On May 4, 1995, the Defendant was indicted on two counts of sexual

battery in violation of Tennessee Code Annotated section 39-13-505(a). He was

tried from October 2 to October 3, 1995. At the conclusion of the proof, the trial

court granted the Defendant’s motion for judgment of acquittal with respect to the

indicted offenses of sexual battery. The trial court found that there had been

insufficient proof of force or coercion to support charging the jury on sexual

                                        -4-
battery. See Tenn. Code Ann. § 39-13-505(a), -503(a)(1). 3 As a result, the trial

court charged the jury only on the lesser included offense of assault. See Tenn.

Code Ann. § 39-13-101(a)(3). After considering the proof presented at trial, the

jury found the Defendant guilty of two counts of assault.



        In his first issue on appeal, the Defendant argues that the trial court erred

in permitting the State to question his character witness about knowledge of his

prior bad acts. The record reflects that the Defendant offered the testimony of

Terrence Tresner as part of his proof at trial. Tresner had been a student at

Henderson High School and had known the Defendant for approximately two

years. He had worked with the Defendant as a member of the Henderson

Historical Society as well. Tresner’s testimony at the Defendant’s trial was

admittedly offered as proof of the Defendant’s good character.                                   On direct

examination, Tresner testified concerning the Defendant’s reputation in the

community as follows:

        Q.     Are you aware of Mr. Thompson’s reputation in the
        community?
        A.     Yes.
        Q.     Is that reputation good or bad?
        A.     Relatively good.
        Q.     Okay. Have you, are you aware of any information in the
        com munity that would lead you to believe that Mr. Thompson was
        someone that it would not be safe for you to stay in his home?
        ...
        A.     If I hadn’t known him previously and got to know him as a
        person and not from rumors, yes. And, there were things that
        floated around that were not facts but just rumors, that I would get
        the wrong idea about him.

The direct examination of Tresner concluded after two more questions.




        3
          Becau se the victims we re seventeen years old at the tim e of the offenses , the trial court
con cluded that the use of pa renta l, custo dial or official authority did not qualify as coerc ion. See Tenn.
Code Ann. § 39-13 -501(1).

                                                     -5-
      The prosecutor began cross-exam ination by asking Tresner what rum ors

he was referring to on direct examination. Tresner stated that there were rumors

that the Defendant “likes to molest boys.”         The prosecutor followed this

questioning by asking Tresner if he knew of a newspaper article that detailed

these rumors. Tresner responded affirmatively. The prosecutor asked Tresner

if he was aware that the newspaper article stated that the Defendant had been

convicted of child molestation in California. Tresner responded that, to the best

of his recollection, the article stated that the Defendant had been arrested but not

convicted. The prosecutor then asked Tresner if it would surprise him to know

that the newspaper article contained information about a conviction in California

or if that information would change his opinion of the Defendant’s good character.

Tresner responded that the information would not change his opinion.



      At trial, the Defendant objected when the prosecutor began to question

Tresner about a source of the rum ors referred to on direct exam ination, namely

the newspaper article. The trial court conducted a bench conference to discuss

the matter out of the hearing of the jury. After hearing argument from the

prosecutor and defense counsel, the trial court found that the Defendant had

offered Tresner’s testimony as proof of his good character. See Tenn. R. Evid.

404(a)(1); 405(a). Accordingly, the trial court ruled that the prosecutor could

question Tresner about relevant specific instances of conduct to test the extent

of his knowledge of the Defendant’s character. See Tenn. R. Evid. 405(a). On

appeal, the Defendant contends that the trial court erred in permitting the

prosecutor’s questions to Tresner concerning the Defendant’s character.




                                        -6-
      W e begin our analysis by noting the well-established principle that

character evidence is generally inadmissible to show conform ity with a certain

trait on a particular occasion. See Tenn. R. Evid. 404(a); Laird v. State, 565

S.W.2d 38, 40 (Tenn. Crim. App. 1978). Yet the defendant may affirmatively

choose to place his or her character at issue. Tenn. R. Evid. 404(a)(1); State v.

W est, 844 S.W.2d 144, 149 (Tenn. 1992). Once the defendant has done so, the

State may confront such evidence in multiple ways. The State has the option of

presenting its own character evidence to rebut the defendant’s evidence. Tenn.

R. Evid. 404(a)(1); W est, 844 S.W .2d at 149 (citing Durham v. State, 128 Tenn.

636, 640, 163 S.W . 447, 448 (1913)).



      In addition, the State may also opt to attack the credibility of a character

witness testifying on behalf of the defendant by cross-examination regarding

relevant specific instances of conduct. Tenn. R. Evid. 405(a). Rule 405(a)

provides that, in the event of such cross-examination, the trial court must upon

request hold a hearing outside the presence of the jury to determine that a

reasonable factual basis exists for the inquiry and that the probative value of the

specific instance of conduct on the credibility of the character witness outweighs

its prejudicial effect on substantive issues. Tenn. R. Evid. 405(a)(1) - (3). With

regard to this type of attack, the Advisory Commission Comments to Rule 405

state the following:

      The examining lawyer can ask the witness about rumored arrests
      and charges concerning the defendant, because the witness’s
      knowledge of the rumors might impeach the witness in the eyes of
      the jurors. If the witness admits having heard unfavorable rumors,
      the jury may decide that the witness’s reputation or opinion
      testimony is entitled to little weight. If the witness has not heard the
      rumors, the witness’s testimony may likewise be taken with a grain
      of salt because the witness is unfamiliar with the accused or the
      accused’s community.

                                        -7-
Advisory Commission Comments to Tenn. R. Evid. 405. In the event of such

questioning, the trial judge should instruct the jury that the questions are for the

purpose of testing the credibility of the witness and that the responses of the

witness are not substantive evidence of the defendant’s character. See State v.

Sims, 746 S.W.2d 191, 194 (Tenn. 1988); State v. Chestnut, 643 S.W .2d 343,

348 (Tenn. Crim. App. 1982).



      In the case at bar, the Defendant affirmatively chose to put his character

at issue through Tresner’s testimony on direct exam ination. Tresner himself

alluded to unsavory rumors about the Defendant during direct examination. The

prosecutor then cross-examined Tresner concerning his testimony on direct

examination, including his mentioning of rumors about the Defendant’s arrest on

or conviction for child molestation charges. Given the prosecutor’s questions to

Tresner, the trial court instructed the jury as follows:

            The Court charges you that when a defendant presents a
      character witness to testify on his behalf, such character witness
      may be cross-examined about certain alleged charges or rumors of
      misconduct by the defendant. Such cross-examination of a
      character witness as to his knowledge of any alleged charges or
      rumors of misconduct by a defendant is not to be considered as
      substantive evidence of said acts, but should be considered by you
      only for the purpose of testing the credibility of the character
      witness. There is no proof of any kind in this record that such
      alleged charges or rumors of misconduct are factual and true, and
      reference to such acts was made to test the good faith, information
      and accuracy of the character witness. In other words, such
      testimony is to be considered by you only for the purpose of
      determining what weight, what value you will give to the character
      witness’s testimony.

The trial court also gave the jury the pattern instruction concerning evidence of

good character offered on behalf of the defendant. See T.P.I. -- Crim. 42.08.




                                         -8-
      Of course, rulings on the admissibility of evidence and the propriety and

form of cross-examination are entrusted to the sound discretion of the trial court.

See, e.g., State v. Hutchison, 898 S.W .2d 161, 172 (Tenn. 1994), cert. denied,

116 S.Ct. 137, 133 L.Ed.2d 84 (1995); State v. Harris, 839 S.W .2d 54, 72 (Tenn.

1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993).

Such rulings will not be reversed on appeal absent an abuse of that discretion.

See State v. Caughron, 855 S.W .2d 526, 541 (Tenn. 1993), cert. denied, 510

U.S. 579, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993). From our review of the record,

we believe that questioning the Defendant’s character witness concerning rumors

of the Defendant’s arrests or convictions stemming from a newspaper article was

permissible under Rule 405(a) of the Tennessee Rules of Evidence. Accordingly,

we cannot conclude that the trial judge erred or abused his discretion in allowing

the challenged questions. This issue is without merit.



      In his second issue on appeal, the Defendant argues that the trial court

erred in sentencing him to six months incarceration. The record indicates that the

Defendant was convicted of two counts of assault pursuant to Tennessee Code

Annotated section 39-13-101(a)(3). This offense is a Class B misdemeanor.

Tenn. Code Ann. § 39-13-101(b). The authorized term of imprisonment for a

Class B misdemeanor is a period of time not greater than six months. Tenn.

Code Ann. § 40-35-111(d)(2). The trial court sentenced the Defendant to the

maximum allowable term of imprisonment for each count, with the sentences to

run concurrently.   On appeal, the Defendant contends that his sentence is




                                        -9-
excessive and that the trial court should have granted him an alternative

sentence such as probation or judicial diversion.4



        W hen an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with 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 facts and circum stances." State v. Ashby, 823 S.W .2d

166, 169 (Tenn. 1991).



        In conducting a de novo review of a sentence, this court must consider: (a)

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

presentence report; (c) the principles of sentencing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancem ent factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



        If our review reflects 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 principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then



        4
        The sentencing alternative comm only known as “judicial diversion” is set forth at Tennessee
Code Annotated section 40-35-313.

                                                -10-
we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



      Misdemeanor sentencing is controlled by Tennessee Code Annotated

section 40-35-302, which provides in part that the trial court shall impose a

specific sentence consistent with the purposes and principles of the 1989

Criminal Sentencing Reform Act.        In misdemeanor sentencing, a separate

sentencing hearing is not mandatory, but the court is required to provide the

Defendant with a reasonable opportunity to be heard as to the length and manner

of the sentence. Tenn. Code Ann. § 40-35-302(a). The trial court retains the

authority to place the defendant on probation either immediately or after a time

of periodic or continuous confinement.         Tenn. Code Ann. § 40-35-302(e).

Misdemeanor sentencing is designed to provide the trial court with continuing

jurisdiction and a great deal of flexibility. One convicted of a misdemeanor, unlike

one convicted of a felony, is not entitled to a presumption of a minimum

sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994 ).



      The principles of sentencing reflect that the sentence should be no greater

than that deserved for the offense com mitted and should be the least severe

measure necessary to achieve the purposes for which the sentence is imposed.

Tenn. Code Ann. § 40-35-103(3) - (4).



      In determining whether to grant probation, the judge must consider the

nature and circumstances of the offense, the defendant’s criminal record, his

background and social history, his present condition, including his physical and

mental condition, the deterrent effect on other criminal activity, and the likelihood

                                        -11-
that probation is in the best interests of both the public and the defendant. Stiller

v. State, 516 S.W .2d 617, 620 (Tenn. 1974). The burden is on the Defendant to

show that the sentence he received is im proper and that he is entitled to

probation. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



      The presentence report indicates that the Defendant was approximately

sixty-eight years old at the time of sentencing. He is a widower and has two

adopted children, ages forty-six and forty-eight, who reside in Dallas, Texas. He

also has two sisters, ages eighty-seven and eighty-four, who reside in Memphis,

Tennessee and Silver Springs, Florida respectively. The Defendant is well-

educated, including a graduate degree in the field of music, and has a good

employment history. He reported no history of alcohol or drug abuse. The

presentence report also contained letters of support from the Defendant’s current

employers.



      The trial court conducted a sentencing hearing at which the Defendant

testified. The Defendant stated that as a result of his arrest in this case, he lost

his jobs at Henderson High School and at the First Presbyterian Church where

he was an organist. He also lost his home and moved from Henderson, Texas

to Tyler, Texas where he works part-time as an organist for the Emerald Bay

Community Church and part-time for Exchange Data Corporation.                   The

Defendant testified that he has coronary-artery disease, for which he has

undergone multiple surgical procedures and continues to take medication daily.

He stated that he is willing to comply with whatever restrictions are placed upon

him as a condition of probation.




                                        -12-
        After considering all of the evidence and evaluating the Defendant’s

testimony, the trial court specifically noted that the offense “rises to a high level

of seriousness.” The trial court also noted that the Defendant’s offenses would

have a lasting impact on the young victims.5 Given the seriousness of the

offenses and the impact which the Defendant’s behavior had on the victims, the

trial court found that the appropriate punishment was a six-month term of

incarceration.



        The trial court is in a much better position to evaluate both the effect of the

offenses upon the victims, as evidenced during the trial testimony, and the

testimony of the Defendant at the sentencing hearing than an appellate court,

which must rely on the written record. Trial judges are traditionally vested with

broad discretionary powers in sentencing matters. This Court should not place

trial judges in a judicial straight-jacket on sentencing matters, and we should be

reluctant to interfere with their traditional discretionary powers. Moten v. State,

559 S.W .2d 770, 773 (Tenn. 1977). From this record, we cannot conclude that

the trial judge erred or abused his discretion in sentencing the Defendant to a

term of confinement rather than an alternative sentence.



        The Defendant has failed to carry his burden of demonstrating that the

sentence he received is improper and that he is entitled to an alternative

sentence. Thus, this issue is without merit. For the reasons set forth in the

discussion above, we conclude that the Defendant’s issues on appeal lack merit.

W e therefore affirm the judgment of the trial court.


        5
         In fact, the transcript of the trial testimony indicates that, upon his return from Mem phis, J.A.
becam e withd rawn and began to have fa m ilial tro ubles. J.A . eventua lly m oved out of his fam ily’s
home, apparently because of embarrassment over the incident in Memphis.

                                                   -13-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE



___________________________________
JOE G. RILEY, JUDGE




                             -14-
