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State v. Farrar4/16/2002
gree with the trial court that the defendant's intoxication does not excuse his behavior, and that there was nothing in the facts of this case to warrant a finding that the defendant acted under strong provocation when he cut the victim. On appeal, the defendant argues that the trial court should have given some weight in mitigation to the fact that his two most recent employers both described him as a "hard worker." However, according to his presentence report, he worked only a little over two months and five months, respectively, at these two most recent jobs. There are only two other jobs listed on his report, one of which lasted about fourteen months and the other about five months. In between these latter two jobs is a two-year gap in employment, which, as far as we have been able to determine, does not correspond to any of the defendant's periods of confinement. We hardly think this qualifies as a good work history. We therefore find no abuse of discretion by the trial court in failing to consider the defendant's work history, or his two most recent employers' praise of his work habits, as a factor in mitigation.
The defendant also argues that the trial court should have found his testimony that he had remained sober for the two years prior to the offense as a mitigating factor. We disagree. We note first that the only evidence the defendant presented in support of this claim was his own testimony. However, even if the defendant's claim is true, we can find no abuse of discretion by the trial court in failing to apply it as a factor in mitigation, especially given the defendant's testimony that he had become discouraged on the night of the incident, thrown up his hands, and made the conscious decision to go out and get drunk.
In sum, the record supports the trial court's finding that there were four enhancement, and no mitigating, factors applicable to the defendant's case. We therefore conclude that the trial court did not err in enhancing the defendant's sentence from the presumptive minimum sentence to a sentence of three years and six months.
II. Impeachment of Defense Witness with Misdemeanor Conviction for Failure to Appear
Next, the defendant contends that the trial court erred by allowing the State to impeach Eldie Farrar with his prior misdemeanor conviction for failure to appear, arguing that failure to appear is not a crime involving dishonesty or false statement. The State contends that failure to appear is, by its very nature, a crime of dishonesty. The State further argues that even if it is not a crime involving dishonesty, any error that may have been caused by impeaching the witness with the offense was harmless, given the insignificant portion of the trial the impeachment occupied, and the fact that a number of other defense witnesses offered testimony that was essentially similar to that given by the witness.
This issue is governed by Tennessee Rule of Evidence 609(a), which provides that, if certain procedures are satisfied, a witness's credibility may be impeached with evidence of a misdemeanor conviction if the crime was one which involved dishonesty or false statement. If the witness being impeached is not the accused, "Rule 403 applies, and a conviction would be admissible to impeach unless `its probative value is substantially outweighed by the danger of unfair prejudice' or other criteria listed in that rule." Tenn. R. Evid. 609, Advisory Commission Cmts. When the trial court has acted within the confines of Rule 609, its decision to permit impeachment by use of a prior conviction will not be overturned on appeal absent an abuse of discretion. State v. Sheffield, 676 S.W.2d 542, 549 (Tenn. 1984); State v. Blanton, 926 S.W.2d
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