State v. Arnold Potter

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 12, 1999
• Docket: 03C01-9810-CC-00347
• Status: Published

Opinion

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