State v. Arnold Potter ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE August 12, 1999
Cecil Crowson, Jr.
JULY 1999 SESSION Appellate C ourt
Clerk
STATE OF TENNESSEE, )
) NO. 03C01-9810-CC-00347
Appellee, )
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.,
ARNOLD LEE POTTER, ) JUDGE
)
Appellant. ) (Assault: Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
RAYMOND MACK GARNER PAUL G. SUMMERS
District Public Defender Attorney General and Reporter
SHAWN G. GRAHAM CLINTON J. MORGAN
(At Trial) Assistant Attorney General
Assistant District Public Defender Cordell Hull Building, 2nd Floor
419 High Street 425 Fifth Avenue North
Maryville, TN 37804 Nashville, TN 37243-0493
JULIE A. RICE MICHAEL L. FLYNN
(On Appeal) District Attorney General
P. O. Box 426
Knoxville, TN 37901-0426 WILLIAM R. REED
LISA B. McKENZIE
Asst. District Attorneys General
363 Court Street
Maryville, TN 37804-5906
OPINION FILED:
AFFIRMED - RULE 20 ORDER
JOE G. RILEY, JUDGE
ORDER
The sole issue in this appeal is whether the trial court erred in sentencing the
defendant for simple assault to the maximum sentence of 11 months and 29 days
and denying alternative sentencing. We AFFIRM the judgment of the trial court
pursuant to Rule 20, Tennessee Court of Criminal Appeals.
I
The defendant, Arnold Lee Potter, was tried by a jury in Blount County for the
offense of aggravated assault and convicted of the lesser offense of simple assault.
Although the trial transcript is not a part of the record, some basic facts are
apparent from the sentencing hearing.
The defendant and his girlfriend, the victim, had lived together for several
years. To say the parties had a stormy relationship would be an understatement.
The victim apparently drank to excess on several occasions, leading to arguments
with defendant. Invariably, the fight was on. An argument and fight ensued
between them on December 9, 1996, resulting in numerous injuries to the victim.
It was defendant’s contention that he acted in self-defense. As stated, the jury
convicted the defendant of the lesser offense of simple assault.
The defendant and the victim continued to live together after the trial. During
this time, another physical confrontation occurred in which the defendant hit the
victim in the nose with his fist. Again, the defendant claimed he acted in self-
defense.
At the time of sentencing, the defendant was 35 years of age and serving a
45-day jail sentence for driving on a revoked license. In addition to that conviction,
he had the following prior convictions or forfeitures: three DUI’s, two other driving
on revoked license, four marijuana possessions, an assault on an officer,
2
contributing to the delinquency of a minor and destruction of county property. He
denied having an alcohol problem and admitted smoking marijuana subsequent to
the trial. He was employed and had a ninth-grade education. Although the
defendant acknowledged at the sentencing hearing that he still loved the victim, he
had decided their relationship “ain’t going to work. [I] haven’t been back and ain’t
going to.”
II
In its findings, the trial court noted the defendant’s extensive misdemeanor
history, the numerous injuries inflicted upon the victim as reflected in the
photographs introduced at trial, defendant’s untruthfulness, defendant’s smoking
marijuana after the trial, defendant’s again physically striking the victim after the
trial, and defendant’s poor rehabilitation potential. In setting bond, the trial court
further found that the defendant was a danger to the victim and to himself.
III
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). We also
note that the trial court has more flexibility in misdemeanor sentencing than in felony
sentencing. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998).
The record does not contain the trial transcript. Since much of this evidence
was relevant to sentencing, defendant’s failure to include the trial transcript
precludes effective appellate review. Troutman, 979 S.W.2d at 274; State v.
Ballard, 855 S.W.2d 557, 561 (Tenn. 1993). Notwithstanding waiver, the record
amply supports the trial court’s imposition of the maximum misdemeanor sentence
and the denial of alternative sentencing. Defendant has not overcome the
presumption of correctness of the trial court’s sentence.
3
IT IS, THEREFORE, ORDERED that the judgment of the trial court be
affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. It is further
ORDERED that costs be taxed to the state since defendant is indigent.
_____________________________
JOE G. RILEY, JUDGE
CONCUR:
_______________________________
GARY R. WADE, PRESIDING JUDGE
_______________________________
DAVID H. WELLES, JUDGE
4