IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED NOVEMB ER SESSION, 1997 January 28, 1998 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9608-CR-00381 ) Appellee, ) ) ) PUTNAM COUNTY VS. ) ) HON. LEON BURNS, JR. TOMMY GENE CLINTON, ) JUDGE ) Appe llant. ) (Assau lt)

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

FOR THE APPELLANT: FOR THE APPELLEE: H. MARSHALL JUDD JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter Reagan Street Cookeville, TN 38501 DARYL J. BRAND Assistant Attorney General 5th Avenu e North Nashville, TN 37243 BILL GIBSON District Attorney General JOHN NISBETT Assistant District Attorney General South Jefferson Avenue Cookeville, TN 38501

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appe llate Proced ure. The Defendant was convicted on a jury verdict of the offense of assau lt.1 The jury imposed a fine of two-thousand five hundred do llars ($2500). The trial judge sentenced the Defendant to eleven months and twenty- nine days in the county jail, with seventy-five percent (75%) to be served. The Defendant appeals his conviction and his sentence. We affirm the judgment of the trial cou rt.

The Defendant does not challenge the sufficiency of the convicting evidence, so we address the facts only briefly. On June 19, 1994, same being Fathe r’s Day, a group of family members had gathe red at th e Def enda nt’s father’s house to commemorate the occasion. Late that afternoon, the Defendant arrived at the house, apparently in a foul mood. An altercation occurred, during which the Defendant discharged a shotgun on the porch where he and the other family members were gathered. The Defendant’s brother-in-law was injured, although not seriously. The Defendant was charged with committing an aggravated assau lt against his brother-in-law. The jury found the Defendant guilty of the les ser includ ed offen se of ass ault.

On this appe al, the De fendan t first argues that the trial judge erred by refusing to allow the victim to be cross-examined concerning a plea of guilty the victim had entered to possessing marijuana for resale and cultivating marijuana.

Tenn. Code Ann. § 39-13-101.

-2- The victim had apparently received judicial diversion for these offenses. The State argues that the record on ap peal is inade quate for us to review this issue properly. We must agree. The record contains no pretrial motions concerning this issue. Defense counsel did not attempt to cross-examine the victim on these matters at the time the victim testified for th e State . At the c onclu sion o f his cross-examination of the victim, defense counsel stated, “your hono r, I would have an offer of p roof whe never the court wa nts to do th at, after lunch or whateve r.” The jud ge replied , “all right.”

After the State rested its case, and after the trial judge denied the Defe ndan t’s motion for a judgment of acquittal, defense counsel stated, “of course I do want to put [the victim] on for an offer of proof.” The judge then allowed counsel to recall the victim out of the presence of the jury and question the victim concerning his guilty plea to and judicial diversion for the drug offenses. He also questioned the victim concerning whether the victim blamed the De fendan t for these c harges , which the victim den ied.

Concerning this issue, the transcript contains no objection by opposing coun sel, no arg ume nt from coun sel con cernin g the re levance, a dmissibility or propriety of the testimony sought by way of this line of cross-examination, and most importantly, no order or ruling by the tr ial cou rt addr essin g this issue, except for the court’s order overruling the motion for a new trial. Nothing in the record indicates that the Defendant sought a ruling from the trial judge on this issue. W e must conclude that this record does not adequately present the issue or allow the issue to b e reviewe d.

-3- The Defendant also argues that the trial court erre d in sente ncing him to the maxim um s enten ce of e leven m onths and tw enty-n ine da ys in the coun ty jail.

He argues simply that “the facts of this case do not warrant the maximum senten ce.” While the facts of the offense may be found from the transcript of the trial, our review of the sentence is hampered by the fact that there is no presentence report and the Defendant neither testified nor presented any evidence at the sentencing hearing. It appears from the record that the Defendant had six prior felony forgery convictions and that he was on parole from these offenses at the time he com mitted the as sault. A lthoug h not fo und in the record, we gather from the argument presented at the sentencing hearing that the Defenda nt had other insta nces of crimina l convictions or crimina l behavior.

In sentencing the Defendant, the trial judge stated, “this is an offense which obviously was fraught with danger, co ming out on the porch of fam ily membe rs with a shotgun and firing away, and with his past record, I think th e State is correct in their position that the Defendant be given a sentence of eleven months and twenty-nine days and be required to serve that se ntenc e and that he shou ld serve seventy-five percent of that sente nce b efore h e is eligib le for any release programs, trusty status, or that sort of consideration.” From this record, we cannot conclude that the trial judge erred or abused his discretion in sentencing the De fendan t.

The judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

-4- CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE

-5-