IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

 Assigned on Briefs March 7, 2001

STATE OF TENNESSEE v. DANIEL L. SCOTT

 Appeal as of Right from the Criminal Court for Shelby County

Nos. 98-13731, 98-13732, 98-13733 Joseph B. Dailey, Judge

No. W1999-01309-CCA-R3-CD - Filed July 19, 2001

The appellant, Daniel L. Scott, entered a best interest guilty plea in the Shelby County Criminal

Court to one count of animal fighting, one count of cruelty to animals, and one count of keeping

unvaccinated dogs. The trial court sentenced the appellant to incarceration in the Shelby County

workhouse for one year for the animal fighting conviction, six months for the animal cruelty

conviction, and thirty days for the keeping unvaccinated dogs conviction. The trial court further

ordered that the sentences be served concurrently. The appellant requested probation, which request

the trial court denied. On appeal, the appellant raises the following issue for our review: whether

the trial court erred in denying the appellant probation. Upon review of the record and the parties’

briefs, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

DAVID H. WELLES, J., joined.

Wayne Emmons, Robert C. Brooks, and Larry Copeland, Memphis, Tennessee, for the appellant,

Daniel L. Scott.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On March 19, 1998, Thomas Arnold, an officer with the “K9" or dog squad of the

Memphis Police Department, was searching for a suspected car thief in the area around Margaretta
1

 We gleaned the facts underlying the appellant’s offenses from the transcripts of the suppression hearing, the

guilty plea hearing, and the sen tencing hearing. 

-2-

Street.1

 During the course of his search, Arnold noticed a large number of animal bones and parts

in various stages of decay in the area behind the property of the appellant, Daniel L. Scott. Arnold

also observed numerous dogs in the appellant’s unfenced backyard. The dogs were on eight to ten

foot heavy chains located beside blue plastic barrels that served as makeshift dog houses, and the

dogs were in standing water and mud. There was no noticeable food near any of the dogs, and the

air reeked of a foul odor similar to sewer water. Arnold contacted Patricia Ann Wright with the

Memphis Animal Shelter and reported possible animal cruelty. 

The next day, a Friday, Arnold and animal control officer Carolyn Lynch returned to

the appellant’s property to investigate. They repeatedly attempted to locate the owner of the

property, but could find no one at the home. The officers discovered a total of twenty-eight Pit Bull

dogs on chains. The dogs had no accessible food or sanitary water, and they either had no bedding

in their “doghouses” or the bedding was soaked with rainwater. Green slime was forming on the

barrels. Arnold testified that the animals were “cold,” “shivering,” and “wet,” with scarring on their

heads and faces. Additionally, Arnold stated that 

[t]here were some skeletons that were thrown, like I said, down the

back of that property on Margaretta backs up to the railroad tracks. .

. . There were also some carcas[s]es that had not decayed completely

yet that were also on that hillside. 

. . . [T]he smell that I was picking up was from other dogs that had

been thrown over into this wooded area that were in various forms of

decay. Some of them were blown up, swollen up, it appeared that

they had just been there a short time. Others there was just the skin

draped over the skeleton. And then others were just the skeleton of

the animals.

Additionally, the officers found “rooster[s], . . .chicken[s], some type of hen that were in separate

cages away from the dogs that were being kept on the property.”

Also located on the property were a boxed-in conveyor belt used as a treadmill, a

“carousel” which was surrounded by a worn groove in the dirt and was used to make the dogs run,

and a fighting ring with blood on it, all of which indicated to the officers that the animals were being

trained to fight. Anthony Rudolph with the Organized Crime Unit (“OCU”) of the Memphis Police

Department executed a search warrant on the appellant’s property on the Monday following the

discovery of the dogs. When the OCU arrived at the appellant’s residence, the treadmill and carousel

had been removed. However, Rudolph testified that he was able to see the circular rut in the dirt and

the center pole that indicated where the carousel had been located.

Due to the nature of the dogs’ living conditions, the animals were taken into custody

by the Memphis Animal Shelter on the Friday of their discovery. The appellant later contended that
2

 A best interest guilty plea, also known as an Alford plea, may be entered by an appellant who wishes to plead

guilty yet proclaim his innocenc e. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 167-168 (1970).

The law of this state provides that the trial court may accept the appellant’s best interest guilty plea provided that the trial

court is satisfied that there is a factual basis fo r the plea. See Dortch v . State, 705 S.W.2d 687, 689 (Tenn. Crim. App.

1985).

3

 At the beginning of the sentencing hearing, the trial court’s comments indicate that the appellant was

sentenced to six months incarceration for the anima l fighting convictio n, a class E felo ny. See Tenn. Code Ann. § 39-14-

203(c)(1) (1997). However, the guilty plea proceedings, the negotiated plea agreement, and the judgment all reflect that

the appellant w as sentenced to one ye ar incarceration for the animal fighting conviction. Moreover, one year is the

statutory minimum sentence for a class E felony conviction. Tenn. Code Ann. § 40-35-111(b)(5) (1997).Therefore, from

the record and the comments of the appellant’s counsel, it is clear to this court that the ap pellant was sen tenced to

incarceratio n for one yea r for his convic tion for anima l fighting. 

-3-

he was boarding the dogs for other people and was not running a dog fighting business, specifically

alleging that most of the dogs did not belong to him. However, he never attempted to claim any of

“his” dogs from the animal shelter, nor did he reveal the identity of the owner(s) of any of the

animals. Eventually, all of the dogs taken into custody were euthanized.

As a result of the foregoing, the appellant, Daniel L. Scott, entered a best interest

guilty plea in the Shelby County Criminal Court to one count of animal fighting, a class E felony;

one count of cruelty to animals, a class A misdemeanor; and one count of keeping unvaccinated

dogs, a class C misdemeanor.2 The trial court sentenced the appellant to incarceration for one year

in the Shelby County workhouse for the animal fighting conviction, six months for the animal cruelty

conviction, and thirty days for the keeping unvaccinated dogs conviction.3

 The trial court further

ordered that the appellant serve the sentences concurrently. The appellant requested probation,

which request the trial court denied, finding that to grant probation would depreciate the seriousness

of the offense, the appellant’s actions were detrimental to society and promoted gambling, and the

appellant was not credible. The appellant now appeals the trial court’s ruling. 

II. Analysis

Our review of the manner of service of the appellant’s sentences is de novo. Tenn.

Code Ann. § 40-35-401(d) (1997). Moreover, if the record reveals that the trial court adequately

considered sentencing principles and all relevant facts and circumstances, this court will accord the

trial court’s determinations a presumption of correctness. Id.; see also State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). Regardless, the burden remains on the appellant to demonstrate the

impropriety of his sentences. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

In conducting our de novo review, this court considers the following factors: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the pre-sentence report; (3) the

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and

characteristics of the criminal conduct involved; (5) evidence and information offered by the parties

on enhancement and mitigating factors; (6) any statement by the appellant in his own behalf; and (7)

the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997); see also

Ashby, 823 S.W.2d at 168.
-4-

The length of the appellant’s sentences was determined by the appellant’s negotiated

plea agreement. However, in determining the manner of service of the appellant’s sentences, we

note that the trial court never specifically stated that it considered the appellant a presumptive

candidate for probation. Ashby, 823 S.W.2d at 168. Moreover, from the statements of the trial court

we are unable to conclude that the trial court considered the sentencing principles. We find that

these errors by the trial court remove the presumption of correctness. Therefore, we will review the

trial court’s denial of probation purely de novo.

To begin our analysis, we recognize that an appellant is eligible for probation if the

sentence actually imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a) (1997). Moreover,

an appellant who is an especially mitigated or standard offender convicted of a class C, D, or E

felony is presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-

102(6). In the instant case, the appellant is a standard Range I offender who was convicted of a class

E felony; therefore, he is presumed to be a favorable candidate for alternative sentencing. See State

v. Robert Duff, No. 02C01-9307-CR-00152, 1995 WL 390951, at *3 (Tenn. Crim. App. at Jackson,

June 28, 1995). Although the presumption of favorability applies to the appellant’s E felony

conviction, no such presumption applies to his misdemeanor convictions. State v. Williams, 914

S.W.2d 940, 949 (Tenn. Crim. App. 1995). 

“[A]fter a trial court determines that a defendant is entitled to the statutory

presumption, it must then determine whether there is sufficient evidence to overcome this

presumption.” Duff, No. 02C01-9307-CR-00152, 1995 WL 390951, at *3. Put another way, this

presumption may be rebutted by “evidence to the contrary.” State v. Zeolia, 928 S.W.2d 457, 461

(Tenn. Crim. App. 1996). If sufficient evidence exists in the record to rebut the presumption of the

appellant’s favorability for probation, then “the trial court is justified in imposing a sentence of

straight confinement.” Duff, No. 02C01-9307-CR-00152, 1995 WL 390951, at *3.

The following sentencing considerations, contained in Tenn. Code Ann. § 40-35-

103(1), may constitute “evidence to the contrary”:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of

the offense or confinement is particularly suited to provide an

effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant. 

Zeolia, 928 S.W.2d at 461; see also State v. M. Steven Lilly, No. 03C01-9505-CR-00143, 1996 WL

87441, at *3 (Tenn. Crim. App. at Knoxville, March 1, 1996). Additionally, the appellant’s

“potential or lack of potential for . . . rehabilitation . . . should be considered in determining the

sentence alternative.” Tenn. Code Ann. § 40-35-103(5); see also State v. Chrisman, 885 S.W.2d

834, 840 (Tenn. Crim. App. 1994).
-5-

The trial court’s statements reflect its finding that probation should be denied because

of the seriousness and magnitude of the offenses, because the appellant’s actions were detrimental

to society, because the appellant’s actions encouraged gambling, and because the appellant was not

credible in his testimony before the court. However, no proof exists in the record to support a

determination regarding the detrimental effect of the appellant’s behavior on society; therefore, the

trial court impermissibly denied probation on that basis. Cf. State v. Hooper, 29 S.W.3d 1, 9 (Tenn.

2000). Nevertheless, we conclude that the trial court did not err in denying probation based on the

seriousness of the offense, the appellant’s lack of honesty with the trial court, and the deterrent effect

of the appellant’s incarceration. 

This court has previously found that the nature and circumstances underlying the

criminal conduct may alone give rise to the denial of probation. Tenn. Code Ann. § 40-35-210(b)(4).

See State v. Fletcher, 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). When imposing

confinement based upon the seriousness of the offense, the trial court must first determine if “‘the

circumstances of the offense as committed [are] especially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated degree.’” Zeolia, 928 S.W.2d

at 462.

 The appellant’s E felony conviction is for animal fighting in violation of Tenn. Code

Ann. § 39-14-203(a)(1) (1997), which statute provides that it is unlawful for any person to own,

possess, keep, use, or train any dog for the purpose of fighting, baiting or injuring another such

animal, for amusement, sport, or gain. Notwithstanding the appellant’s best interest guilty plea, the

facts contained in the record clearly show that the appellant kept the confiscated Pit Bulls for the

purpose of fighting them for sport or gain. There was evidence that the appellant trained the dogs

with a treadmill and a carousel and then put them in a ring to fight. Testimony showed that the dogs

themselves were scarred. Specifically, Officer Lynch testified that she knew the appellant was

involved in dog fighting “[b]y the equipment and the scars [on the dogs]. One dog had staples in the

head, the wounds. There were several dogs with the legs messed up where they probably had been

broken at one time and healed back. So we were real sure there was fighting going on.” Moreover,

the appellant possessed business cards advertising himself as a dog fighter and kept a notebook

containing the names of people who owed him money. 

Additionally, the record reflects that the appellant kept the twenty-eight dogs in

atrocious conditions. The dogs were confined by heavy chains, provided inadequate shelter, forced

to live in standing water, surrounded by their own feces, with no available sanitary food or water.

Patricia Ann Wright, a supervisor with the Memphis Animal Shelter, testified at the sentencing

hearing that the conditions at the appellant’s residence were collectively the worst she had ever seen.

Specifically, she stated, “there were just so many of them and just so many with scars and, you know,

just too many for one person to really care for properly, you know.” 

In denying the appellant probation based upon the seriousness of the offense, the trial

court explicitly explained:
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We are Americans and we live in this society and this is our culture.

I mean, if he wants to move to Ho Chi Minh City and raise dogs and

fight them, go for it. But we live in Memphis, Tennessee and . . . our

legislature . . . chose to make this conduct illegal. And it may not be

illegal in Hong Kong or in Bangkok, but is illegal in Memphis,

Tennessee. . . . And if [the appellant] feels that culturally there needs

to be a change, then, perhaps, he should remove himself to a different

culture where this conduct is looked upon with favor . . . [b]ut in our

culture this is illegal.

. . . .

I think our legislature clearly and objectively has said that in our

culture this conduct and the conduct that we saw at the hearing on the

motion to suppress flies in the face of what’s acceptable to most of

the people in the state of Tennessee. It’s outrageous, in my opinion.

Obviously, we’re not talking about humans. Obviously, we’re talking

about dogs. But it’s still outrageous.

. . . .

And I think that the proof that I heard, both at the suppression hearing

and today paints a scene that, in my opinion, is shocking. The

number of dogs that were kept in that backyard; the manner in which

they were kept; the dead carcasses over the back fence. I believe

there was one dead carcass . . . hanging over a tree limb. . . . The lack

of shelter and food and clean water. The state of disease and injury

to the dogs. The treadmill with the blinders on the sides. The

carousel, which mysteriously disappeared after the first officers were

out there.

We agree with the trial court that circumstances surrounding the appellant’s offensewere sufficiently

shocking and reprehensible to justify denying the appellant probation based upon the seriousness of

the offense. See Zeolia, 928 S.W.2d at 462; State v. Clessie T. Jaco, No. 01C01-9802-CC-00091,

1998 WL 917805, at *4 (Tenn. Crim. App. at Nashville, December 21, 1998).

Furthermore, the trial court found that the appellant was not credible when testifying

before the court. See State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994); State v. Alvin

Lee Lewis, No. 01C01-9404-CC-00125, 1995 WL 115853, at *4 (Tenn. Crim. App. at Nashville,

March 14, 1995). During the sentencing hearing, the appellant admitted that he has previously been

convicted of being a spectator at a dog fight in Oklahoma. However, the appellant claimed that he

was not truly a spectator at a dog fight, merely a spectator at a dog show where a fight erupted. The

appellant entered a best interest guilty plea on the charges surrounding that offense. 

Additionally, the appellant testified at the sentencing hearing that he currently has

nine dogs and has built a new facility in which to house them. He continued to deny ownership of

most of the confiscated dogs, alleging instead that he was boarding the majority of the dogs for other

people for a charge of twenty dollars per week. The appellant contended that the dogs were not
-7-

injured in dog fights but were scratched when one dog would get loose from its chain and attack

another dog. The appellant alleged that the business cards found at his residence proclaiming him

to be a dog fighter were merely misprints. He further denied ever seeing the gambling notebook

even though, on the inside cover of the notebook was a hand-drawn figure representing the appellant

with a speech balloon coming out of the figure’s mouth saying, “My name is Dan!!” The words “u

people o me cash” surround the figure. 

We also note that the appellant expressed the extent of his remorse by testifying that

“I’m sorry for what my friends helped me get into.” See Jaco, No. 01C01-9802-CC-00091, 1998

WL 917805, at *4 (stating “while the defendant did express remorse for his actions, he placed a

portion of the blame on [others which] suggests the defendant is not entirely able to accept full

responsibility for his actions; full acceptance [being] a better indication of amenability to

rehabilitation”). Furthermore, the appellant only admitted to “technical violations of the law.”

Additionally, the appellant contends that someone else put the dead dogs on his property and

removed the carousel and treadmill from his property. Inconsistently, the appellant also asserted that

the dogs died of parvo; however, the animal shelter found no indication that any of the remaining

animals had been exposed to parvo. The appellant introduced some veterinary bills into evidence

to support his claim that some of the dogs had received medical treatment. The appellant maintained

that he is supporting his three children and has learned his lesson. 

This court has previously stated that 

[t]he trial judge was in the best position to determine the attitude and

demeanor of the Defendant on the witness stand. We are not in a

position to view the Defendant differently upon the record which is

before us. A Defendant’s credibility and willingness to accept

responsibility for his offense are circumstances relevant to

determining his rehabilitation potential. 

Lewis, No. 01C01-9404-CC-00125, 1995 WL 115853, at *4. The trial court found the appellant’s

story to be utterly incredulous, and concluded that, contrary to the appellant’s contentions, the proof

indicated that the appellant was engaged in a large dogfighting operation. Specifically, the trial

court stated, “[H]is effort to deny [his culpability] today offended me. It offended me greatly

because I think the proof is compelling and overwhelming.” In connection with this issue, our

supreme court has stated that 

there is no rule in this State requiring a Defendant to admit his guilt

in order to seek probation. If this had been the sole basis for the trial

court’s denial of probation, we . . . would have reversed the trial

court. However, . . . the Defendant’s untruthfulness . . . is certainly

a factor which the court may consider at a probation hearing. . . .

[T]he United States Supreme Court [has] held that a defendant’s false

testimony, observed by the trial court during the trial, [is] probative

in sentencing as having a bearing on a defendant’s prospect for

rehabilitation. 
-8-

State v. Bunch, 646 S.W.2d 158,160-161 (Tenn. 1983)(citations omitted). The record supports the

trial court’s finding that the appellant was untruthful with the court and refused to fully accept

responsibility for his actions, which indicate his lack of rehabilitative potential. 

Additionally, we note that deterrence may be considered as a factor in denying the

appellant probation. In Hooper, 29 S.W.3d at 10-12, our supreme court explained the application

of the deterrence factor:

[W]e will presume that a trial court’s decision to incarcerate a

defendant based on a need for deterrence is correct so long as any

reasonable person looking at the entire record could conclude that (1)

a need to deter similar crimes is present in the particular community,

jurisdiction, or in the state as a whole, and (2) incarceration of the

defendant may rationally serve as a deterrent to others similarly

situated and likely to commit similar crimes.

. . . .

[T]rial courts should consider factors, such as the following, when

deciding whether a need for deterrence is present and whether

incarceration is “particularly suited” to achieve that goal:

1) Whether other incidents of the charged offense are increasingly

present in the community, jurisdiction, or in the state as a whole.

. . . .

2) Whether the defendant’s crime was the result of intentional,

knowing, or reckless conduct or was otherwise motivated by a desire

to profit or gain from the criminal behavior.

. . . .

3) Whether the defendant’s crime and conviction have received

substantial publicity beyond that normally expected in the typical

case.

. . . .

4) Whether the defendant was a member of a criminal enterprise, or

substantially encouraged or assisted others in achieving the criminal

objective.

. . . .

5) Whether the defendant has previously engaged in criminal conduct

of the same type as the offense in question, irrespective of whether

such conduct resulted in previous arrests or convictions.

. . . .

Additional facts may be considered by the sentencing court, provided

that (1) the sentencing court states these additional factors on the

record with specificity, and (2) the presence of these additional

factors is supported by at least some proof.
-9-

In the present case, it is clear to us that the appellant was intentionally keeping the

Pit Bulls in order to fight them to “profit or gain from the criminal behavior.” Specifically, there

was evidence of the appellant’s involvement in a gambling enterprise for pecuniary gain associated

with his dogfighting operation. See State v. Alexander A. Lee, No. W1999-01804-CCA-R3-CD,

2000 WL 1840077, at *3 (Tenn. Crim. App. at Jackson, December 14, 2000), perm. to appeal

denied, (Tenn. 2001). Behavior motivated by a desire for pecuniary gain is considered more

deterrable than actions committed negligently or in the heat of passion. Hooper, 29 S.W.3d at 11.

The appellant’s involvement in gambling was proven in part by a notebook containing the names of

individuals and the amounts that the individuals owed the appellant. Accordingly, the appellant’s

gambling enterprise could be considered a “criminal enterprise” in which the appellant “substantially

encouraged or assisted others” to participate. See State v. Timothy C. Jewell, Jr., No. W2000-

00998-CCA-R3-CD, 2001 WL 524368, at *4 (Tenn. Crim. App. at Jackson, May 15, 2001);see also

State v. Davis, 940 S.W.2d 558, 560 (Tenn. 1997) (stating that when there is proof in the record that

another individual involved in the offense in question went unpunished, a denial of probation may

be necessary to deter others from committing similar offenses). Furthermore, the appellant admitted

at the sentencing hearing that he had previously been convicted in Oklahoma of being a spectator

at a dog fight, which is “criminal conduct of the same type as the offense in question.” Hooper, 29

S.W.3d at 12; cf. State v. Beverly K. Meeks, No. M2000-00435-CCA-MR3-CD, 2000 WL 1879520,

at *5 (Tenn. Crim. App. at Nashville, December 28, 2000). The appellant has not met his burden

of demonstrating to this court that the sentence imposed is improper.

III. Conclusion

Based on the foregoing, we affirm the judgment of the trial court.

___________________________________ 

NORMA McGEE OGLE, JUDGE