State v. C. W. McCaleb ( 1998 )

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
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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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