### 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, Danie

l L. Scott, ente

red a best inte

res t gui lty plea in the Shelby County Criminal Courtto one count o f animal fighting, one count of cruelty to animals, and one count of ke eping unvaccinated

dogs. The trial c

ourt sentenced th

e appellant to inc

arceration in th

e Shelby Co

un ty workhous e forone year f or the animal fig

hting conviction,

six months for the anim al cruelty

co nvi ction, 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 r

equest the trial court denie

d. On appeal, the

appellant raise

s the follo wing issue for our review: whether the trial court erred in denying the appellant probation. Upon review of th

e record and the

parties’ briefs, we affi

rm the judgment of

the trial court.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in whi ch G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.
Wayne Emmons, Robert C. Brooks, and Larry Copeland, Memphis, Tenness ee, for the appe llant, Daniel L. Scot

t.

Paul G. Summ

ers, At torney Gener al and R eporte r; Clin ton J. Morgan, Assistant

Attorney Ge

neral; William L. Gibbons, Di str ict Attorney General; and Amy Weirich, A ssistant District Attorney General, for the appellee, State of Tennessee.

OPINION
I. Factual Backgr

ound On March 19, 19 98, 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 Margar

etta1 We gleaned the facts underly ing the appellan

t’s of fenses from the transcripts of t he suppression hearing, the guilty plea hear ing, and the sen tencing hear ing.

-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. Scot

t. Arnold also observed numerous dogs in the appellant’s unfenced backyard. The dogs were on eight to ten foot heavy cha

ins located beside

blue plastic barr

els that served a

s makeshift d

og houses, an d 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 co ntacted Patricia Ann Wright with the Memphis Animal Shelter and reported possible animal cruelty.

The nex t da y, a Friday, Arnold and animal control officer Caroly

n Lynch returned to the ap pellant’s property to investigate. They repeatedly attempted to locate the owner of the pro pert y, but could find no one at the home. The officers dis covered a total o

f twenty-e ight 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 wa s f orming on the barrels. Arnold testified th at the animals wer

e “cold,” “shive

ring,” and “we

t,” with scarring

on their heads and face

s. Additionally

, Arnold stated tha

t [t]here were some skele

tons that were thr

own, lik e 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 wa

s from o ther dogs that had been thrown over into th

is woodedarea that were in various forms of deca y. So me of them were blown up, swollen up, it appeared that they had just

been there a short

time. Others ther

e was just the skin draped over the skeleton. And then others were just the skeleton of the animals. Add iti ona lly, the officers found “rooster[s], . . .chicken[s], some type of hen that were in separa

te cages away from the dogs that wer e being kept on the property.”

Also located on the property were a boxed-in c onv eyo r belt used as a treadmill, a “carousel”

which was surrounded by a worn groove in the dirt and was used to makethe dogs run, anda fighting ring

with blood on it, all of

which indicated to

the officers tha

t the animals

were being trainedto fight. Anthony Rudolph with the Organized Crime Unit (“OCU”) of the Memphis Police Department

executed a search warrant on the appe llant’s property on the Monday following the discovery of the dogs. When the OCU arrived at the appellant’s residence, the treadmill and carousel hadbeen 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 th

e dogs’ living c

onditions, the anima

ls were taken

into custody by the Memphis Animal Shelter on the Friday of their discovery. The appellant later contended that2 A best interest guilt y plea, also known as an Alford plea, may be entered by an appellant who wishes to pl

ead guilty yet proclaim his innocenc e. See North Caroli na v. Alf or d , 400 U.S. 25, 37-38, 91 S. Ct. 160, 167-168 (1970). The law of thi s state provi des that the trial cour

t may accept th

e appellant’ s best int

erest guil ty plea provided t

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

Tenn. Cri

m. App. 1985).

3 At the beginning of t he sentencing

hearing, t

he trial court’s comments indicate t

hat the appell

ant was sentenced

to six mon

ths in carcerat ion 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 negotiat

ed plea agreement,

and the judgment al

l reflect that the appellant w as sentenced to one ye ar incar ceration for the animal fi ghting conviction. Moreover, one year is the statutoryminimum sentence for a class E felony convict ion. Tenn.Code Ann. § 40-35- 111(b)(5) (1997) .Therefor e, from the record and the comments of the appellant ’s counsel, it is cl ear 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 fig hting business, specifi

cally alleging that most of the dog s did not belong to him.

However, he never attempted to claim any of “his” dogs fro m th e ani mal she lte r, n or d id h e rev eal the ide nti ty of the own er(s ) ofany of th e animals. Eventually, all of the dogs taken into custody we re euthanized.

As a result of the foregoing, the appellant, D aniel L. Scott,

entered a best in

terest guilty plea in the Shelby County Criminal Court to o ne count of a nimal fight ing, a cl ass E fel ony;
one count of cruelty to animals, a class A misdemeanor; and one count of k eep ing 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 cr

uelty conviction, and thirty days for the keeping unvaccinated dogs conviction. 3 The trial court furthe r orderedtha t the appellant serve the sentences concurrently. The appe llant requested probation, which request the trial

court denied, fin

ding that to

grant probation

would depreciat

e 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 man

ner of service o

f the appellant’ s sentences is de novo. Tenn. Code Ann. § 40-35-401(d) (1997). Moreover, if the record r eveals th at 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, 1 69 (Tenn. 1991). Re gardless, the b

urden remains on t

he appellant to de

monst rate th e impropriety

of his sentences.

Tenn. Code Ann. § 40

-35-401, Sentenc

ing Commission Commen ts.

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 repor t; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature a nd 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 -10 2,-103,-210 (199 7); see also Ashby , 823 S.W.2d at 168.-4- The length of the appellant’s sentences was determined by the appellant’snegotiated plea agreement. Ho

wever, in deter

mining the manner

of service of the

appellant’s s entences, we notethat the trial cour

t never specific

ally stated t

hat 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 correctne ss. 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 convictedof a c lass 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 wa

s convicted of a c

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

v. Robert Duff

, No. 02C01 -9307-CR-

00152, 199

5 WL 390951, at *3 (Tenn. Crim. App. at Jackson, June 28, 1995). Although the presumption of favorability applies to the appellant’s E f elon y 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 dete

rmines that a defe

ndant is entitl

ed to the statutory presu mption, it must then determin e whether there

is sufficient evid

ence to overcom

e this presumption.” Duff

, No. 02C01 -9307-CR-

00152, 199

5 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 favo rabi lit y f

or proba tion, 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 considera tions, co ntained in Tenn. Code Ann. § 40-35- 103(1), may constitute “evidence to the contrary ”: (A) Confineme nt is neces sary to protect society by restrai ning a defendant who ha

s a long history

of criminal condu

ct; (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 re

strictive than con

fin ement h ave frequently or recently been applied unsuccessfully to the defendant. Zeolia
, 928 S.W.2d at 461 ; see also Statev. M. Steven Lill y , No. 03C01-950

5-CR-0014

3, 1996 WL 87441, at *3 (Tenn . Crim. A pp. at Knoxville, March 1, 1996). Additionally, the appellant’s “potential or lack of potential for . . . rehabilitation . . . sho uld be con sidered in determining the sentence alternative.” T

enn. Code Ann. § 40- 35-103(5); see also Sta te v. Chrisma n , 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994).-5- The trial court’s sta

tements reflect

its finding that pr

obatio n should

be denied becau

se of the seriousness a

nd magnitude of th

e offenses, bec

ause the appellant’s actions were detrimental to society, be

cause the appel

lant’s actions en

couraged ga

mbling, and beca

use the appellant was not credible in his testimony befo re the court. How ever, no proof e

xists in the record to

support a determination regarding the det rim ent al e ffec t of the app ell ant ’s b ehav ior on s oci ety; 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, t

he appellant’s la

ck of honesty

with the trial cour

t, and the deterrent effect of the appellant’s incarceration.

This cou rt h as p revi ous ly fo und tha t th e nat ure a nd c irc ums tan ces u nde rlyi ng th e 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). Whe n i mposing confinement based upon the seriousness of the offense, the trial court must fir

st determine if “‘the circumsta nces of the offense as committ ed [are] es pecially viol ent, horri fying, shockin g, reprehensible, offensive, or otherwise of an excessive or exaggerated degre e.’” 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 an y person to own, possess, keep, use, or tra in 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 fac ts contained in the record clearly show that the appellant kept the confisc ated Pit Bul ls for th e purpose of f ighting the m for sport or gain. Ther e was eviden ce that the a ppellant t rained the d ogs witha 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 hadbeen 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 asa do g fighter and kept a notebook containing the names of people who owed him money.

Add iti ona lly, the record ref lects that the app

ellant kept the twe

nty -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, w i th 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 ha d ever seen. Spe cif ica lly, 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 ca re for properly, you know.”

In denying th

e appellant proba

tion based upon the

seriousness

of the offense, the trial court explicitly explained:-6- 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, b ut is illegal in Mem

phis, Tennessee.

. . . And if [the appel lant] feels that culturally there needs to be a change, th

en, perhaps,

he should remove h

imself to a different culture where this

conduct is

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

al.

. . . . I think our legislature clearly and objectively has said that in our culture this conduct and the conduct that wesaw at the hearing on the motion to suppress flies in the face of what’s accepta ble to most of the people in the state of

Tennessee. It’soutrageous, in my opinion. Obv iou sly, we’re

not talking about humans. Obviously, we’re talking about dogs. But i

t’s still outrage

ous.

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

a scene that, in my

opinion, is s hocking. The number of dogs that were kept in that backyard; the manner in which they were kept; the dead carca sses 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 t o the dogs. The treadmill with the blinders on the sides. The carousel,which myster

iously disapp

eared after th

e first officers were out there. We agree with the

trial court that c

ircumstances sur

rounding the app

ellant’s o ffense were sufficiently shocking and reprehensi

ble 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-0 0125, 1995 WL 115853, at *4 (Tenn. Crim. App. at Nashville, March14, 1995). During the sentencing hearing, the appellant admitted that he has previously

been convictedof

being a spectator at a dog fight in Oklahoma. However, the appellant cla imed that he

was nottruly

a spectator at a dog fight, merely a spec tator at a dog show where a fight erupted. The appellant entered a best interest guilty plea on the charg es surrounding that offense.

Add iti ona lly, the appellant tes ti fied 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 confiscat

ed dogs, alleg

ing instead that h

e was boarding

the majority

of the dogs for other people for a charge

of twenty do

llars per week.

The appellant co

ntended th at the dogs were not-7-

injured in dog fights but

were scratche

d when one dog wo

uldget loose f

rom its chain and attack another dog. The appellant all eged that the bu

siness cards foun

d at his residence

proclaiming him to be a do g fighter

were merely misprints. He further denied ever see ing the gambling notebook

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

ing “while the de

fendant did expres s remorse for his a c tions, he placed a portion of the blame on [othe rs which] sugge

sts t he defen dant is not entirely able to accept f

ull responsibility

for his actions; full acceptance [being] a better indication of am e nability to rehabilitation”). Furthermo re, the appellant only admitted to “technical violations of the law.” Add iti ona lly, the appellant contends that someone else put the dead d ogs on his property and removedthe 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 e

xposed toparvo. The appe llant introduced s

ome veterinary bills into evidence to support his claim thatsome 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 pre

viously state

d that [t]he trial judge was i

n the best position to determine the attitude and demeanor o f t he Defendant on the witness stand. We are not in a position to view the Defendant differently upon the rec ord which is b ef ore us. A Defendant’s credibility and willingness to accept responsibility

for his offense a

re circumsta

n ces 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 indicatedthat t

he appel lant was engaged in a large dogfighting operation. Specifically, the trial court stated, “[H]is effort to den y [ his culpability ] today offe

nded me. It of

fended me gre

atly because I think the proof is compelling and overwhelming.” In c onnection with this issue, our supreme court ha

s stated that there isno rule in this State re quiring a Defe

ndant to admit his g

uilt in order to seek pro

bation. If this

had been the sole

basis for the trial

co urt’s denial of probation, we . . . would have reversed the tria l court. However, . . . the Defendant’s unt ruthfulness . . . is c

ertainly

a fact or w hic h th e cou rt m ay conside r at a probation hearing. . . . [T]he United States Supre me Court [has] held that a

defendant’s fa

lse tes tim ony, observed by the trial court during the trial, [is] probative in sen tencing as having a bearing on a defendant’s prospect fo r rehabilitation.-8-

Statev. Bunch , 646 S.W.2d 158,160-161 (Tenn. 1983)(citations omitted). The record supports the trial court’s finding that the appellant was untrut hful with the court and refused to fully accept responsibility for his actions, which indicate his lack of rehabilitative potential.

Add iti ona lly, we note that deterrence may be considere d as a factor in denying the appellant proba tion . In Hooper , 29 S.W.3d at 10-12, our supreme court explained the application of the deterrence factor:

[W]e wil l pres ume that a trial court’s decision to incarcerate a d efendant 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 p res ent in t he p art icu lar com mun ity, jurisdiction, or in the state as a whole, and (2) incarceration of the d efendant may rationa

lly serve a

s a deterrent to o

thers simi larl y situated and likely

to commit similar cr

imes.

. . . . [T]rial courts should cons ider factors, su

ch as t he fol lowing, when deci ding whether a need for deterrence is present and whether incarceration

is “particularly

suited” to achiev

e that goal: 1) Whether other incidents of the charged offense ar e increasingly present in the community, jurisdiction, or in the state as a whole.

. . . . 2) Whether the defe

ndant’s crime wa

s the result of inte

n tional, knowing, or r eckl ess con duc t or was oth erwi se m oti vat ed b y 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 w hether such conduct res

ulted in previous a

rrests or convic

tions.

. . . . Additional facts may

be considered by

the sentencing

court, provided that (1) the sentenci

ng court states t

hese additional f

actors on the

reco rd with specificity

, and (2) the pre

sence of these a

dditi ona l factors is supported by at least some proof.-9- In the pres ent case , it is c lea r to us t hat the app ell ant was int ent ion all y keeping the Pit Bulls in order to

fight them to “pr

ofit or gain from the criminal behavior.” Specifically, there

was evidence of the

appellant’s invol

vement in a gambl

ing enterprise

for pecuniary

gain associated withhis dogfighting operation. See State v. Alexander A. Lee , No. W1999-01804-CCA-R3-CD, 2000 W L 1840077 , at *3 (Tenn. Crim. App. at Jackson, December 14, 2000), perm. to appeal denied
, (Tenn. 2001). Behavior motivated by a desire for pecuni ary 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 cons idered a “crim inal enterprise”

in which the appel

lant “substantiall

y
enco uraged

orassisted 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 Statev. 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 bee n convicted in Oklahoma of being a s pectato r at a dog fight, which is “criminal conduct of the same type a

s 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 for

egoing, we af

firm the judgmen

t of the trial cour

t.

___________________________________ NORMA McGEE OGLE, JUDGE