State of Tennessee v. Van Trent

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 22, 2016 Session
STATE OF TENNESSEE v. VAN TRENT
Direct Appeal from the Criminal Court for Sullivan County
No. S60042 R. Jerry Beck, Judge
No. E2015-00354-CCA-R3-CD – Filed March 30, 2017
The Appellant, Van Trent, was convicted by a Sullivan County Criminal Court Jury of
five counts of facilitation of dogfighting. The Appellant received concurrent sentences of
eleven months and twenty-nine days for each conviction, sixty days of which was to be
served in confinement and the remainder on probation. On appeal, the Appellant
challenges the sufficiency of the evidence sustaining his convictions, the trial court‟s
instructing the jury on lesser-included offenses over the Appellant‟s objection, the denial
of the Appellant‟s right to counsel, the admissibility of expert testimony regarding the
causation of scarring to the dogs, the introduction of the Appellant‟s appearance bond as
rebuttal proof, and the trial court‟s denial of full probation. Upon review, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.
Gene G. Scott, Jr., Jonesborough, Tennessee (on appeal), and J. Matt King, Kingsport,
Tennessee (at trial), for the Appellant, Van Trent.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Barry Staubus, District Attorney General; and Julie R. Canter, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
During a search of 1207 Imperial Drive in Kingsport, the police found four scarred
pit bulls and a multitude of items related to dogfighting. The police discovered that the
address was listed on the Appellant‟s driver‟s license and checking accounts as his
address. Thereafter, the Appellant was charged with nine counts of dogfighting.
At trial, Sergeant Jimmy Wayne McCready of the Sullivan County Sheriff‟s
Department testified that on October 20, 2011, he was standing in the front yard of 1207
Imperial Drive, waiting to execute a search warrant. The Appellant walked up to him,
and Sergeant McCready asked if he could help the Appellant. The Appellant responded
that “it was his home or his house and wanted to know what was going on.” At that
point, Sergeant McCready asked one of the detectives to speak with the Appellant.
Sergeant McCready had no further contact with the Appellant.
On cross-examination, Sergeant McCready acknowledged that in the statement he
gave to Detective Richard Kindle on February 2, 2012, he said that “homeowner Van
Trent [the Appellant] showed up.” Sergeant McCready explained that although the
Appellant “never mentioned [being the] homeowner, he mentioned that he was – it was
his house, is how he put it.”
Sullivan County Detective1 Richard Kindle testified that he executed the search
warrant around dusk on October 20, 2011. Janette Reever with the Humane Society of
the United States also participated in the search. During the search, Detective Kindle
found four pit bull dogs in the backyard. Two of the dogs were in separate kennels. The
other two dogs were each chained to a different car axle that had been driven into the
ground.
Detective Kindle also found a wooden treadmill in a storage building. The
Appellant told Detective Kindle that he made the treadmill. Detective Kindle found a
document titled “For historical purposes only, Cajun Rules.” The rules, which were for
dogfighting, had been written by “G.A. (Gaboon) Trahan.” The rules had been printed
from the web site “sporting-dog.com.” Detective Kindle found several books and
magazines about pit bulls. Additionally, Detective Kindle found a metal sled and a
plastic tackle box. The words “Liberty Farms” and “show” were written on each end of
the tackle box. Detective Kindle found framed photographs of “Old Mountain Men
Kennels” and the Appellant‟s son, Travis Trent,2 posing with a dog. Detective Kindle
found IV tubing, syringes with needles, and two prescription bottles containing pills. He
1
At the time of trial, Detective Kindle had left the Detective Division to become a patrol officer due to
“[p]ersonal health problems.”
2
Some of the individuals in this case share a surname. Therefore, for clarity, we have chosen to utilize
their first names. We mean no disrespect to these individuals.
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found a kennel registration with the American Dog Breeders Association (ADBA). The
police also found antiseptic ointment, dietary supplements, various veterinary items, a
large metal spring, a nylon harness, dog show award ribbons, and pedigree charts.
Detective Kindle discovered a dry cleaning receipt from a business in North Carolina; the
receipt was dated April 4, 2011. Detective Kindle also found a receipt from a hotel in
North Carolina that reflected a stay from January 30, 2011, to February 2, 2011.
From the Appellant‟s vehicle, Detective Kindle recovered the Appellant‟s personal
checks. The checks listed the Appellant‟s address as 1207 Imperial Drive.
On cross-examination, Detective Kindle acknowledged that the search warrant
reflected that the residence belonged to “Travis Trent” and did not mention the
Appellant‟s name. When Detective Kindle spoke with the Appellant at the property, the
Appellant was cordial and respectful. Detective Kindle stated that he found two
checkbooks in the Appellant‟s vehicle. The checks from the Appellant‟s account at
Eastman Credit Union reflected that the Appellant‟s address was 1207 Imperial Drive.
The other checks, which were from the Appellant‟s account at Charles Schwab, reflected
that his address was 5104 Antler Ridge Court, Raleigh, North Carolina.
Detective Kindle said that he found no evidence of dogs or dogfighting in the
Appellant‟s vehicle. Additionally, he found no evidence that dogs had been on the
wooden treadmill the Appellant had made. Detective Kindle conceded that he found no
evidence inside the residence that indicated the Appellant was living there.
Detective Kindle said that in the house, he found a kennel registration that stated
“Liberty Farms, Lovers and Breeders of American Stratfordshire [sic] and Pit Bull
Terriers, Travis and Jill Trent, Kingsport, Tennessee.” Detective Kindle found no
evidence that the Appellant was associated with the dogs, the dog shows, or Liberty
Farms Kennel. The Appellant‟s name was not on any of the magazines found at the
house, and Detective Kindle did not find any evidence that the Appellant had bought the
veterinary supplies or had used them on the animals. Detective Kindle did not find
videos or photographs of dogfighting, a fighting pit, a wash tub, sponges, weight scales,
blood, or dogfighting contracts.
Detective Kindle said that after the four dogs were removed from the property,
they were taken to Dr. Becky DeBolt, a veterinarian, for examination.
On redirect examination, Detective Kindle stated that the Appellant said he did not
know where Travis Trent was; nevertheless, from the dry cleaning and hotel receipts,
Detective Kindle surmised that Travis Trent was in North Carolina. Detective Kindle
noted that the Appellant showed up at the property at the beginning of the search and that
despite Travis Trent‟s absence from the property, the dogs had been fed and watered.
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Detective Kindle stated that the dog books and magazines were not hidden and
were openly displayed in the living room. Detective Kindle knew that dogfighting was
“secretive”; therefore, he was not surprised when he was unable to find “clearly labeled
and named evidence.” Detective Kindle noted that the Appellant had said he made the
wooden treadmill by hand and that the police found woodworking tools in the house.
The parties stipulated to the admission of an affidavit that reflected the Appellant
applied to Eastman Credit Union on October 20, 2011, and that the application reflected
his address was 1207 Imperial Drive. Additionally, the parties stipulated to the
admission of copies of the Appellant‟s 2010 and 2012 Tennessee driver‟s licenses. Each
license reflected that the Appellant‟s address was 1207 Imperial Drive. The parties also
stipulated to the admission of a check from the Appellant‟s account at Regions Bank.
The check, which was written on April 26, 2010, listed the Appellant‟s address as 1207
Imperial Drive. Finally, the parties stipulated to two separate vehicle registrations in the
Appellant‟s name. The application for registration for a 1993 Toyota was made on
January 6, 2006, and the vehicle registration renewal was dated February 4, 2011. The
application for registration for a 1994 Nissan was made on February 13, 2007, and the
vehicle registration renewal was dated February 4, 2011. Both applications and both
renewal forms listed the Appellant‟s address as 1207 Imperial Drive.
Sullivan County Detective Matthew Price testified that he found two security
cameras mounted on the exterior of the house: one camera was located on the front porch,
and the other was aimed at a portion of the driveway. The cameras were motion
activated and were linked to a digital video recorder (DVR). The police recovered
recordings that were made from October 1 to October 16, 2011. The recordings showed
the Appellant coming to the property on four separate occasions. On each occasion, he
arrived in a white Toyota then walked toward the garage. No cameras were directed
toward the backyard, the storage building, or the back door of the house.
On cross-examination, Detective Price said that the security recordings revealed
the Appellant spent almost six hours at the residence on October 2, he spent almost three
and one-half hours at the property on October 7, and he spent the night at the property on
October 12 and on October 14. The recordings showed only the Appellant‟s arrivals and
departures, not his activities while at the property.
Janette Reever, an expert in dogfighting, testified that she assisted with the search
of the house, yard, and outside building. A “whelping kennel” for breeding dogs was in
the garage. Four American pit bull terriers were found in the backyard. Their names
were “Sadie, Brew, Blaze, and No Name.” Two of the dogs were on large chains. Each
chain was attached to half of a car axle; each axle had been driven into the ground far
enough apart so the dogs could not reach each other. The chained dogs were “adjacent
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to” two dogs that were in separate wire kennels. While waiting for animal control
officers to arrive, Reever interacted with the dogs. The dogs were not aggressive toward
her, which Reever said was common for fighting dogs because they had to be around
people before, during, and after fights.
Reever said that the injuries sustained by dogs as a result of professional
dogfighting usually occurred to the front legs, head, muzzle, or “stifle area” on the rear
leg. In her work as a veterinary technician, Reever also had seen untrained dogs after
non-staged fights, and she said that the injuries were different than those sustained during
an organized dogfight. Generally, a dog injured in a non-staged fight had assumed a
“submission position” and, as a result, received injuries to the neck or abdominal area.
Reever examined photographs that were taken of the four dogs retrieved from
Imperial Drive. Reever identified numerous scars on the muzzle, ears, front legs, and
rear leg of the first dog, a “pup” approximately one year old. She did not identify the
name of the first dog. The second dog, “No Name,” who was also approximately one
year old had scars to the head, ear, above the eye, shoulder, and “all over” the front legs.
Additionally, the dog had multiple healed puncture wounds and a laceration above the
eye. The third dog, a seven- to nine-year-old Reever did not identify by name, had scars
to the ear and shoulder, “pressure sores” on the front leg, and a healed puncture wound.
The final dog, Sadie, who was approximately eleven years old, had lacerations to the ear,
scarring on the “hock area,” a healing puncture wound, and a pressure sore. Reever said
that based upon her training and experience, her “expert opinion [was] that these dogs
were being raised and bred for the purpose of dogfighting.”
Reever said that a tackle box, which she called a “crash kit,” was found in the
garage. The kit contained white and black chalk, and each shade could be used to
conceal a dog‟s scarring. Another item, an alligator hemostat, was a surgical tool for
“pinch[ing] off” a blood vessel for suturing. The kit also contained an IV catheter, bag,
and line that could be used to “rapidly deliver intravenous fluids” to combat the effects of
blood loss, stress, and shock in a dog after a fight. Further, the kit contained betadine, an
antiseptic for cleaning the area where the IV would be inserted. Additionally, the kit
contained saline solution which could be used for hydrating a dog, rinsing a wound, and
diluting medications. Reever explained that crash kits were commonly found at the
homes of dogfighters because dogfighters had to personally treat their dogs instead of
calling a veterinarian after a fight.
Reever said that several of the dietary supplements found at the property were
used to help rebuild muscles of dogs that were “heavily worked.” Another supplement
was for “flush[ing] out the kidneys” after a dog was given steroids so the dog‟s kidneys
would not “fry.”
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Reever stated that a “break stick” was found at the residence and that the words
“Liberty Farms Show” were written on the side of the stick. Reever explained that a
break stick was used to pry open the mouth of a pit bull dog. The stick had visible teeth
marks on it, which indicated the stick had been used.
Reever recalled that copies of the “Sporting Dog Journal” and the “American Pit
Bull Terrier Gazette” were found in the living room. The “Gazette” was published by the
ADBA, which certified and registered pedigrees for pit bulls. The “Sporting Dog
Journal” was an “underground” journal used to disseminate information about training
dogs for fighting. Reever stated that the “Sporting Dog Journal,” which was often found
in the homes of dogfighters, could be purchased only if a known professional dogfighter
vouched for the purchaser.
Reever said that professional dogfighters usually had their own kennel name and
had dogs with established bloodlines. Reever said that dogfights, which were often
referred to as shows, matches, or events, were established on a professional level by
either a written contract, “a gentleman‟s agreement,” or a handshake. Reever noted that
contracts were seldom written; therefore, handshakes were the most common way of
establishing an agreement.
Reever noted that dog pedigrees were found in the living room, but none were for
the dogs discovered at the residence. Nevertheless, one of the pedigrees was “addressed
to Jill and Travis Trent” and was for a dog registered to Liberty Farms Kennel. Each of
the pedigrees listed dogs in the lineage that were well-known among dogfighters. The
pedigrees also contained “code words” and were of the type of pedigrees that were
commonly “found at properties where dogs are being trained for fighting purposes.”
Reever identified a copy of “The Cajun Rules” that was retrieved from the
residence. She explained that in the 1950s, Louisiana Chief of Police G.A. Gaboon
Trahan wrote the Cajun Rules, which were the most frequently used rules of dogfighting.
Reever said that during the eight-week period before a fight, a dogfighter generally
trained and conditioned the dog on a daily basis. Dogfighters referred to the period of
conditioning as “the keep.” The keep included making the dog run, usually on a
treadmill, for one hour to one hour and forty-five minutes each day.
She noted that a flirt pole and a spring pole were found on the property. A flirt
pole was made of a long, stable object, such as a branch or a piece of PVC, from which
was dangled an item of “high value” to the dog, such as animal hide or a stuffed animal.
A spring pole was made from a spring hanging from a solid, stable object, such as a pole,
from which a high value item was dangled. A sled was also found on the property. She
opined that the sled was too small for legitimate weight pulling but that it could be used
to increase a dog‟s endurance.
-6-
On cross-examination, Reever acknowledged that a photograph of the first dog
showed an injury to the rear area. Reever acknowledged that during a “nonstaged” fight,
a dog could be injured on the rear area but that the injury would typically be “by the base
of the tail where the dog is trying to run away.” In the photograph, however, the injury
was not around the base of the tail and was instead on “the top side area. It‟s called the
stifle.” Reever said that although she noticed injuries to the dogs‟ ears, none of the dogs
had pieces of ear missing. She said that the injuries to “No Name‟s” front legs were
inconsistent with the dog being in a submission position. The third dog had wounds
consistent with pressure sores, which Reever could not say were caused by dogfighting.
The oldest dog, eleven-year-old Sadie, who was not extensively scarred, had some
scarring to her ear and healed injuries to the stifle area. Reever was not certain the
injuries were caused by dogfighting; nevertheless, if the injuries were caused by
dogfighting, the fighting was not recent. Reever explained that even if a dog was not
used for fighting, it could be used to breed fighting dogs if it had a desirable blood line.
Reever acknowledged that she had no evidence of the Appellant attending or
betting on a dogfight. She conceded that the Appellant‟s name was not on any of the
pedigrees for Liberty Farms Kennel, but she stated, “A kennel can be a multitude of
people. . . . Just because someone‟s name is on a kennel, there could be other
partnerships that are also involved in there.” Reever stated that the authorities did not
find a fighting pit during the search but asserted that it would have been unusual to find a
fighting pit where fighting dogs were housed.
Reever stated that the harness and sled found at the property could serve the dual
purposes of legitimate weight pulling and “conditioning a dog for a keep.” She looked at
a photograph and agreed that the dog in the photograph was wearing a harness similar to
the one found at the residence, that the dog appeared to be engaging in a weight pull, and
that the man in the photograph appeared to be Travis Trent. The Appellant was not in the
photograph.
Reever stated that the tackle box found at the residence was a crash kit for treating
wounds received in a dog fight but that she had no proof that the contents of the box had
been used.
On redirect examination, Reever noted that the two female dogs found at the
property had not been spayed and that the two male dogs had not been neutered. She
opined that if a sled and harness were found at the same residence as a copy of the Cajun
rules for dogfighting, she did not think the sled and harness would be used for
“legitimate” purposes. She said that the items found in the crash kit were not used in
weight pulls. She said that any one of the items found by the police, if considered on its
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own, did not suggest conclusively involvement in dogfighting but did suggest dogfighting
if considered together.
As the defense‟s first witness, Dr. Bea Moody testified that she was a veterinarian
who treated mainly dogs and cats. The trial court allowed her to be designated as an
expert in the field of veterinary medicine.
Dr. Moody said that in the course of her practice, she had seen dogs, including pit
bulls, that had been injured during a fight. She said that the types of wounds depended
on how many dogs were involved in the fight and the size of the dogs. She said that pit
bulls had huge jowls made up of “rock-hard muscle” and that they had the strength to
“rip” skin and limbs from other dogs. Dr. Moody said that pit bulls usually would attack
near another dog‟s groin or neck. Nevertheless, she asserted that pit bulls were “good
dogs” and that she did not “see a whole lot of pit fights.”
Dr. Moody said that after the four dogs were taken from the Imperial Drive
residence, they then were taken to Young-Williams Animal Shelter. Several months
later, the Appellant contacted Dr. Moody and asked her to examine the dogs. Dr.
Moody‟s first visit was on August 9, 2012. She said that the dogs were “excellent” and
were not aggressive.
Dr. Moody said she was provided a list of items that were seized from the Imperial
Drive property. She had to do independent research because she did not recognize some
of the items. She talked with clients that owned pit bulls and a “master groomer” that
showed and bred pit bulls. She also reviewed the “records and findings” of Dr. DeBolt,
who was “the veterinarian in charge of Young-Williams Animal Shelter.” Dr. Moody
also looked at photographs of the dogs that were taken in November.
Dr. Moody maintained that she and Dr. DeBolt found “no scars indicative of
dogfighting.” Instead, Dr. Moody found evidence of “normal wear and tear.” She
observed that eleven-year-old Sadie had minimal scarring and that none of the scarring
indicated she had been involved in dogfighting. She stated that one of the young dogs
had scars on his legs. She said that the dog was housed with another young dog and that
the scarring could be from the dogs playing and gnawing on each other. In conclusion,
she opined, “These dogs have not been involved in fighting. There‟s no evidence,
physical or otherwise in my mind, that they have been involved in fighting, or I wouldn‟t
be here.”
On cross-examination, Dr. Moody said that she had examined the flirt pole. She
had to “look it up „cause [she] wasn‟t sure what it was.” When asked if she was aware
that the flirt pole was often used to train dogs to fight, Dr. Moody responded, “I‟m
learning.” Dr. Moody did not know that the “Sporting Dog Journal” was an underground
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publication that posted results from dogfights. She acknowledged that a copy of the
“Cajun Rules” was recovered from the residence. She stated, however, “I have several
things at my house, books of witchcraft, Wiccan [sic], Buddhism, Hinduism. That
doesn‟t make me that, it makes me want to expand my horizons.”
Dr. Moody said that her brother once owned a pit bull. Her brother had a flirt pole
for the dog but did not have a copy of the Cajun Rules. She acknowledged that she
examined the dogs about nine months after they were confiscated and that the dogs had
been fed, watered, and given medical care at Young-Williams Animal Shelter. Dr.
Moody stated that she had a “mobile . . . home practice” and that less than five percent of
her clients were pit bulls. Dr. Moody conceded that she had never participated in an
animal fighting investigation, that she had never testified as an expert witness, and that
she had no training in veterinary forensics. Dr. Moody did not x-ray the dogs to see if
they had any healing or healed fractures. Instead, she watched to see if the dogs were
moving properly. Also, during a physical examination of the dogs, she closed her eyes
and felt for callous formations, which were indicators that a bone had been broken and
healed. Dr. Moody conceded that “most forensic veterinarians who have advance
training in dogfighting” perform x-rays.
Dr. Moody said that pit bulls were “extremely wonderful dogs” and that they were
“very brilliant” and eager to please their owners. Although she recognized that some
fighting pit bulls might not be aggressive toward people, she believed that “there would
be some kind of behavior patterns with those dogs, that if they were fought, that you
could tell that they were fought.” She acknowledged that she had no training to support
that belief, but she asserted that the belief was supported by her twelve years of
experience with seeing dogs that have been involved in fighting, such as when multiple
dogs were in one home and fought over food or about mating. She conceded that she had
never treated an animal that had been in an organized dogfight.
Gladys Jo “Joy” Foster testified that she was employed by the United States Postal
Service and that she knew the Appellant. Foster delivered mail five or six days per week.
On October 20, 2011, her postal route included 431 Cope Road, which she asserted was
the Appellant‟s address. She noted that her route was almost seventy-one miles long and
that she occasionally stopped at the Appellant‟s mobile home to use the restroom. She
said that she had seen the Appellant and his vehicle at the residence on most of the days
she delivered mail and that she often stopped to talk with him.
On cross-examination, Foster said that she and the Appellant had dated for three or
four years; their relationship ended more than twenty-three years ago. She usually
delivered mail to the Appellant‟s Cope Road address after 2:00 p.m., but she was never
there after dark.
-9-
Alvin Monroe testified that his daughter had a child with Travis Trent. Monroe‟s
daughter and Travis Trent had lived together on Imperial Drive. During his daughter‟s
relationship with Travis Trent, Monroe met the Appellant. On four or five occasions,
Monroe went to the Appellant‟s home on Cope Road. Monroe did not know of the
Appellant ever living on Imperial Drive. Monroe said that he had known the Appellant
for eight years and did not know of the Appellant owning a dog. However, Travis Trent
and Monroe‟s daughter owned dogs. Monroe went to a dog show in North Carolina with
his daughter and Travis Trent. The show was “like you see on TV, Westminster
[K]ennel. Strictly pit bulls. They got out there, paraded them around, and they had these
judges that evaluated them. And then later they would hand out awards.” Immediately
after the dog show, they attended a weight pull.
Monroe said that when he visited Imperial Drive, the dogs were “playful” and
“rambunctious.” He did not see the Appellant interact with the dogs.
On cross-examination, Monroe said that his daughter never married Travis Trent.
Monroe‟s daughter and Travis Trent were together for two or three years, and their
relationship ended six or seven years before trial. Monroe did not visit Imperial Drive
after his daughter‟s relationship with Travis Trent ended. Monroe said he remembered
seeing a tackle box at the dog show with Travis Trent. Monroe knew that in October
2011, Travis Trent was working for Shane Trent in North Carolina.
Claude Wallace Ketron III testified that he and his wife had lived at 433 Cope
Road for five years and that they had owned rental properties in that area for fifteen
years. The Appellant had rented 431 Cope Road, which was one of Ketron‟s rental
properties, since May 14, 2002. Ketron said that the Appellant‟s property was located
approximately five feet from Ketron‟s property. Ketron saw the Appellant “quite often in
and out through the week, daily.”
Ketron said that in the ten years he had known the Appellant, the Appellant had
never owned any animals or expressed an interest in dogs. Travis Trent and his son had
visited the Appellant at the Cope Road residence. Ketron identified photographs showing
the Appellant‟s grandson and the grandson‟s cousin playing at the dock behind the
Appellant‟s mobile home.
On cross-examination, Ketron acknowledged that he did not monitor his tenants
but occasionally noticed their comings and goings. Ketron did not know if the Appellant
came home every night but stated that he saw the Appellant‟s van each morning and
evening. Ketron acknowledged that he had never been to Imperial Drive. Ketron stated
that the Appellant paid his rent each month by check but that he did not notice what
address was on the Appellant‟s checks. Ketron stated that the Appellant had a van and a
truck.
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The parties stipulated to the admission of records from electrical services in
Bristol, Tennessee. The record reflected that the account for 431 Cope Road was opened
in the Appellant‟s name in 2002. Additionally, the parties stipulated to the admission of
the Appellant‟s account for water at 431 Cope Road. Finally, the parties stipulated to the
admission of the August 13, 1997 warranty deed for 1207 Imperial Drive in the names of
Jill Workman and Travis Trent and the March 25, 2003 quitclaim deed from Workman to
Travis Trent.
On rebuttal, the State introduced a certified copy of an appearance bond dated
November 4, 2011. The appearance bond was signed by the Appellant, and the address
listed on the bond was 1207 Imperial Drive. The bond was issued by Tri-City Bonding
Company.
The jury found the Appellant guilty of eight counts of facilitation of dogfighting.3
The jury also found the Appellant guilty of a ninth count of facilitation of dogfighting for
allowing the premises under his control to be used for possessing or keeping dogs for
fighting. The trial court merged the convictions for each dog, resulting in five total
counts of facilitation of dogfighting. The court sentenced the Appellant to concurrent
sentences of eleven months and twenty-nine days, sixty days of which was to be served in
confinement with the remainder on probation.
On appeal, the Appellant challenges the sufficiency of the evidence sustaining his
convictions, the trial court‟s instructing the jury on lesser-included offenses over the
Appellant‟s objection, the denial of the Appellant‟s right to counsel, the admissibility of
Reever‟s testimony regarding the causation of the scarring to the dogs, the introduction of
the Appellant‟s appearance bond, and the trial court‟s denial of full probation.
II. Analysis
A. Right to Counsel
Prior to trial, the Appellant was represented by J. Matt King and Wayne
Culbertson. Immediately prior to the voir dire of the jury, the State informed the trial
court that it had spoken with counsel about a potential conflict of interest because
Culbertson also represented Travis Trent, who was the Appellant‟s son and co-defendant
in the instant case. The State said that it had provided defense counsel with a copy of
State v. Parrott, 919 S.W.2d 60 (Tenn. Crim. App. 1995), which stated that a defendant
must knowingly and intelligently waive his right to conflict-free counsel in the event of
3
Four of the counts related to “possessing” each of the dogs for fighting, and the other four counts related
to “keeping” each of the dogs for fighting.
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an actual conflict caused by joint representation. Defense counsel responded that they
would discuss the issue with the Appellant.
The State maintained that Culbertson had asked why the State was raising the
issue for the first time on the first day of trial. The State responded that it had thought
that King represented the Appellant and that Culbertson represented Travis Trent and had
recently become aware that Culbertson represented both defendants.
Culbertson acknowledged that his joint representation caused an apparent
problem. King said that he and Culbertson had thought that the Appellant and Travis
Trent would be tried jointly and that he and Culbertson had intended to represent the
defendants together. Culbertson said that he and King had worked together and that the
Appellant wanted both attorneys to represent him. Culbertson acknowledged that King
“ha[d] worked on this case and done a whole lot more work on it than I have as far as this
trial [is] concerned.” Culbertson said that the State was trying to “conflict [him] out”
because he did not have a written waiver from Travis Trent, who was in federal custody
in another state. The State asserted that it was trying to prevent “an obvious post-
conviction issue” that could arise from the failure to obtain sufficient waivers from the
defendants.
Culbertson maintained that he was “not so sure there [was] a conflict, the way we
were looking at this.” The State argued that, at a minimum, an appearance of conflict
existed. The State asserted that without an affidavit from Travis Trent, Culbertson could
not represent the Appellant at trial. Culbertson conceded, “I think he‟s right.”
Culbertson asked for a continuance to obtain a waiver from Travis Trent. The trial
court expressed its disinclination to continue the case, noting that it had prevented an
officer from going on vacation in order to testify and that an expert witness from
Washington, D.C., was present to testify. The trial court examined Parrott and asked the
parties for suggestions on what should be done. The State observed that in the instant
case, the evidence was found in a home that the defendants apparently shared and that the
defendants could attempt to implicate each other. Therefore, the State opined that King
was not disqualified from representing the Appellant but that a problem would occur if
Culbertson represented the Appellant at trial and then represented Travis Trent in
subsequent proceedings related to the same charges. At that point, Culbertson offered to
withdraw to “take care of th[e] problem.”
On appeal, the Appellant contends that the trial court violated his right to be
represented by the counsel of his choice by ruling that Culbertson could not represent him
without a waiver from Travis Trent. The Appellant maintains that the trial court misread
Parrott and improperly concluded that a waiver must be obtained not only when an actual
conflict of interest exists but also when only a possible conflict of interest exists. The
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Appellant asserts that, at most, a possible conflict of interest existed in the instant case
and, therefore, that no waiver was necessary. In response, the State argues that an actual
conflict of interest existed and that the trial court did not err in its ruling. We agree with
the State.
Initially, we note that Culbertson voluntarily withdrew from representation to
alleviate the conflict before the trial court made a formal ruling on whether to force
Culbertson to withdraw. Accordingly, this issue is arguably waived. See Tenn. R. App.
P. 36(a) (providing that “[n]othing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”).
Nevertheless, we note that “the Sixth Amendment to the United States
Constitution and article I, section 9 of the Tennessee Constitution guarantee a defendant
in a state criminal prosecution the assistance of counsel.” State v. White, 114 S.W.3d
469, 475 (Tenn. 2003) (citing Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State v.
Northington, 667 S.W.2d 57, 60 (Tenn. 1984)). Generally, “the right to counsel includes
the qualified right to the counsel of one‟s choice.” Parrott, 919 S.W.2d at 61 (citing
Wheat v. United States, 486 U.S. 153 (1988)). However, “„while the right to select and
be represented by one‟s preferred attorney is comprehended by the Sixth Amendment, the
essential aim of the Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be represented by the
lawyer whom he prefers.‟” White, 114 S.W.3d at 475 (quoting Wheat, 486 U.S. at 159).
“The right to be represented by counsel of one‟s choice is qualified and „must be
balanced against the requirements of the fair and proper administration of justice.‟” State
v. Huskey, 82 S.W.3d 297, 305 (Tenn. Crim. App. 2002) (quoting United States v.
Micke, 859 F.2d 473, 480 (7th Cir. 1988)). This court will reverse a trial court‟s ruling
on attorney disqualification only if the record shows an abuse of discretion. White, 114
S.W.3d at 475. An abuse of discretion occurs when a court applies an incorrect legal
standard or reaches a decision against logic or reasoning that causes injustice to the
complaining party. Id.
Our supreme court has stated that “[i]n determining whether to disqualify an
attorney in a criminal case, the trial court must first determine whether the party
questioning the propriety of the representation met its burden of showing that there is an
actual conflict of interest.” Id. at 476. In the instant case, the State, as the party raising
the challenge, had the burden of establishing the conflict by a preponderance of the
evidence. Id. This court has noted that “[a]n actual conflict of interest is usually defined
in the context of one attorney representing two or more parties with divergent interests.”
State v. Tate, 925 S.W.2d 548, 552 (Tenn. Crim. App. 1995); see also Clinard v.
Blackwood, 46 S.W.3d 177 (Tenn. 2001). In other words, an actual conflict of interest
exists when counsel “is placed in a position of divided loyalties.” McCullough v. State,
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144 S.W.3d 382, 385 (Tenn. Crim. App. 2003). An actual conflict may occur during
instances of multiple representation; i.e., when one attorney simultaneously represents
clients with differing interests. White, 114 S.W.3d at 476.
As the State argued, part of the Appellant‟s defense concerned establishing that
1207 Imperial Drive and the evidence found there belonged to Travis Trent, not to the
Appellant. In other words, a major part of the Appellant‟s defense was to implicate
Travis Trent. “An actual conflict is said to exist when „counsel cannot use his best efforts
to exonerate one defendant for fear of implicating the other.‟” State v. Ray Edward Polk,
No. 1194, 1991 WL 188885, at *5 (Tenn. Crim. App. at Knoxville, Sept. 26, 1991)
(quoting United States v. Auerbach, 745 F.2d 1157, 1162 (8th Cir. 1984)). Moreover, the
Tennessee Rules of Professional Conduct provide, in pertinent part, that
(a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer‟s
responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.
Tenn. Sup. Ct. R. 8, RPC 1.7(a). Therefore, we conclude that the State established by a
preponderance of the evidence that Culbertson‟s representation of the Appellant and
Travis Trent was an actual conflict of interest.
Tennessee Rule of Criminal Procedure 44(d) provides that in cases of joint
representation, the trial court
shall promptly inquire about the propriety of joint
representation and shall personally advise each defendant of
the right to the effective assistance of counsel, including
separate representation. Unless there is good cause to believe
no conflict of interest is likely to arise, the court shall take
appropriate measures to protect each defendant‟s right to
counsel.
Further, the Tennessee Rules of Professional Conduct provide that
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[n]otwithstanding the existence of a concurrent conflict of
interest under paragraph (a), a lawyer may represent a client
if:
(1) the lawyer reasonably believes that the lawyer will be able
to provide competent and diligent representation to each
affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a
claim by one client against another client represented by the
lawyer in the same litigation or other proceeding before a
tribunal; and
(4) each affected client gives informed consent, confirmed in
writing.
Tenn. Sup. Ct. R. 8, RPC 1.7(b); see White, 114 S.W.3d at 479.
In the instant case, Culbertson and King told the trial court that the Appellant
wanted to be represented by Culbertson, suggesting that the Appellant waived his right to
conflict-free counsel. However, neither the Appellant nor Travis Trent executed a written
waiver of conflict-free counsel. Regardless, our supreme court has cautioned that “even
though a conflict of interest may be waived . . . , trial courts must remain vigilant and
retain substantial latitude for refusing to accept a waiver because of the unpredictability
of the dimensions of the conflict.” Frazier v. State, 303 S.W.3d 674, 684 (Tenn. 2010)
(citing Wheat, 486 U.S. at 162-63). We conclude that the Appellant is not entitled to
relief on this issue.
B. Expert Witness
Immediately prior to Reever‟s testimony at trial, defense counsel challenged her
qualifications to testify as an expert regarding the causation of the dogs‟ injuries. The
trial court offered to conduct a jury-out hearing to determine Reever‟s qualifications. The
State asserted that Reever was not a veterinarian and that it intended to have her testify as
an expert in dogfighting but that it did not intend to offer her testimony regarding
causation. Defense counsel refused to stipulate that Reever was a dogfighting expert but
maintained that he did not anticipate objecting to her expertise in dogfighting. The trial
court ascertained that defense counsel was not requesting a jury-out hearing about
Reever‟s qualifications and reconvened the jury.
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Reever testified that she had an associate‟s degree in animal science. She attended
the Northern Virginia Animal Control Academy, which lasted forty hours and included
training in animal fighting. She also attended four animal cruelty courses, each of which
lasted forty hours; animal blood sports training, which lasted thirty hours; and had thirty
hours‟ worth of training on animal fighting, cruelty investigations, and body condition
scoring. She said that as part of her training, she learned the basics of animal care,
nutrition, behavior, first aid, anatomy, physiology, “how to triage an animal when they
come in,” anesthesia, and how to assist in surgery. She had also worked on three
dogfighting investigations with Dr. Melinda Merck, an internationally-known forensic
veterinarian. Reever stated that she had worked as a surgical technician and as a “lead
technician” in a veterinary practice with sixteen doctors, as a lead technician at an
overnight emergency veterinary clinic, and as a veterinary technician at a smaller animal
hospital. She had spent nine years as the Deputy Chief of Loudoun County Animal
Control in Northern Virginia, two years as an animal control officer in the District of
Columbia, and almost two years as an animal control officer in South Carolina. She had
also been an instructor in the field of dogfighting. At the time of trial, Reever was
employed by the Humane Society of the United States (HSUS) as the Deputy Manager of
Animal Fighting Response. Her duties included answering the animal fighting “tip line,”
through which dogfighting and cockfighting were reported; working with law
enforcement on alleged dogfighting cases; and keeping “up to date on the current lingo
for dogfighting, what bloodlines are prominent, and basically all the aspects of
dogfighting.” She stated that since 1996, she had been involved in hundreds of
dogfighting investigations. She had observed and handled dogs that were rescued from
fighting situations and saw their injuries and scars. Reever said that she previously had
been qualified as an expert witness in dogfighting and cockfighting cases in Virginia,
Pennsylvania, Michigan, Maryland, and Florida. Based upon the foregoing, the trial
court qualified Reever as an expert in dogfighting.
Reever testified about the general practices of dogfighters and dogfights and her
participation in the search of the Imperial Drive address. As Reever began to testify
about the types and locations of injuries typically found in dogfighting cases, defense
counsel objected, arguing that Reever could not testify “about causation of injuries.
She‟s not been qualified as a medical expert. . . . She‟s been qualified about
dogfighting.” The trial court noted Reever had testified that due to her training and
experience, she had seen dogfights and the injuries that occurred during dogfights.
Defense counsel argued that the State intended to have Reever review the photographs of
the dogs found during the search and to testify about the cause(s) of their injuries and
scars. The trial court said that Reever‟s testimony was permissible, observing that she
was qualified as an expert in dogfighting “[w]ithout much objection.” The court also said
that a layperson would know “that dogs get in a fight” and that “whether or not these
dogs were in a fight‟s a matter for the Jury to decide.” Defense counsel contended that
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the State needed a veterinarian to testify about how the wounds were made. The trial
court overruled the objection.
On appeal, the Appellant contends that the trial court erred by allowing Reever,
who was an expert in dogfighting but was not a veterinarian, “to give unqualified expert
medical opinion testimony concerning causation of scarring on the four dogs taken from
the premises by authorities and on the ultimate issue of whether the dogs‟ purpose and
use was for dogfighting.” The State responds that the trial court properly allowed Reever
to testify regarding the injuries based upon her expertise in dogfighting. We agree with
the State.
Generally, expert testimony must be both relevant and reliable before it may be
admitted. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The trial
court has broad discretion in determining the qualifications, admissibility, relevancy, and
competency of expert testimony. See State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002).
As such, this court will not overturn the trial court‟s ruling on the admissibility of expert
testimony absent an abuse of that discretion. See State v. Ballard, 855 S.W.2d 557, 562
(Tenn. 1993).
The admission of expert testimony is governed by Tennessee Rules of Evidence
702 and 703. Rule 702 provides, “If scientific, technical, or other specialized knowledge
will substantially assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Evidence constitutes
“„scientific, technical, or other specialized knowledge,‟ if it concerns a matter that „the
average juror would not know, as a matter of course.‟” State v. Murphy, 953 S.W.2d
200, 203 (Tenn. 1997) (quoting State v. Bolin, 922 S.W.2d 870, 874 (Tenn. 1996)). Rule
703 requires that the expert‟s opinion be supported by trustworthy facts or data “of a type
reasonably relied upon by experts in the particular field in forming opinions or inferences
upon the subject.” Expert testimony shall be disallowed “if the underlying facts or data
indicate lack of trustworthiness.” Tenn. R. Evid. 703.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the
United States Supreme court held that Federal Rule of Evidence 702 requires that a trial
court “ensure that any and all scientific testimony . . . is not only relevant, but reliable.”
In McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997), our supreme court
set forth the following list of factors for determining the reliability of scientific evidence:
(1) whether scientific evidence has been tested and the
methodology with which it has been tested; (2) whether the
evidence has been subjected to peer review or publication; (3)
whether a potential rate of error is known; (4) whether, as
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formerly required by Frye, the evidence is generally accepted
in the scientific community; and (5) whether the expert‟s
research in the field has been conducted independent of
litigation.
Nonscientific expert testimony is based on “„specialized knowledge,‟ that is, the
expert‟s experience.” State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). In determining
whether the testimony of a proffered nonscientific expert should be admitted, trial courts
may consider the following:
(1) the McDaniel factors, when they are reasonable measures
of the reliability of expert testimony; (2) the expert‟s
qualifications for testifying on the subject at issue; and (3) the
straightforward connection between the expert‟s knowledge
and the basis for the opinion such that no “analytical gap”
exists between the data and the opinion offered.
Id. at 834-35.
Our supreme court has observed that an expert witness “may acquire the necessary
expertise through formal education or life experiences.” State v. Reid, 91 S.W.3d 247,
302 (Tenn. 2002). “However, the witness must have such superior skill, experience,
training, education, or knowledge within the particular area that his or her degree of
expertise is beyond the scope of common knowledge and experience of the average
person.” Id.
Reever testified, without objection, as an expert in the area of dogfighting. She
testified about her degree in animal science, her work as a veterinary technician, her
training about dogfighting, and her experience investigating dogfighting. She said that
she had seen ongoing dogfights and had witnessed the injuries incurred by the animals
after being fought. The trial court determined that based upon the foregoing, Reever was
qualified to testify regarding the injuries and scarring, and the causes thereof, to the dogs
found at the Imperial Drive address. We can discern no abuse of discretion in this
finding.4
4
We note that in other jurisdictions, experts with backgrounds similar to Reever have been allowed to
testify about the causes of injuries found on animals that have been fought. See State v. Schneider, 981
So. 2d 107, 112 (La. Ct. App. 2008); Commonwealth v. Alfred Taylor, No. CR06-1701, 2008 WL
8201053, at *3 (Va. Cir. Ct. 2008); State v. Reginald Anderson, No. 101,235, 2010 WL 3853072, at *4
(Kan. Ct. App., Sept. 24, 2010); People v. Armond Norfleet, No. 291218, 2010 WL 3564829, at *2
(Mich. Ct. App., Sept. 14, 2010).
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The Appellant complains that Reever‟s testimony was unreliable because his
expert, Dr. Moody, testified that the dogs had not been engaged in dogfighting.
“Although the trial court must analyze the science and not merely the qualifications,
demeanor or conclusions of experts, the court need not weigh or choose between two
legitimate but conflicting scientific views.” McDaniel, 955 S.W.2d at 265. Accordingly,
the Appellant‟s argument concerns the weight to be given Reever‟s testimony, not its
admissibility. The weight to be attributed to an expert‟s testimony is a matter entrusted to
the jury as the trier of fact. Id. The Appellant is not entitled to relief on this issue.
C. Rebuttal Evidence
The Appellant argues that the trial court erred by allowing the State to introduce
the Appellant‟s appearance bond as rebuttal evidence. The record reveals that during
defense proof, several witnesses testified about the Appellant‟s address being on Cope
Road. After the close of the defendant‟s proof, the State informed the trial court that it
intended to introduce a certified copy of the Appellant‟s appearance bond, which was
signed one month after the offenses, as rebuttal proof. The appearance bond listed the
Appellant‟s address as 1207 Imperial Drive. Defense counsel objected but acknowledged
that the document was a certified copy and was already “in the court file.” Defense
counsel further acknowledged that he had introduced documents from the water company
and the power company reflecting that the Appellant‟s address was on Cope Road. The
trial court asked defense counsel to specify the objection. Defense counsel responded
that the document was hearsay. The trial court replied that because the appearance bond
was certified, the objection was overruled.
On appeal, the Appellant contends that the evidence was not relevant and was
redundant. He further contends that the introduction of the evidence in rebuttal unfairly
emphasized its evidentiary value. The State maintains that the trial court correctly ruled
that the appearance bond was proper rebuttal evidence. We agree with the State.
We note that the sole objection raised by the Appellant in the trial court was that
the appearance bond was hearsay. The Appellant did not raise this complaint on appeal,
thereby abandoning that issue. On appeal, the Appellant raises different objections to the
admissibility of the appearance bond as rebuttal evidence. Generally, a party is bound by
the evidentiary theory argued to the trial court and may not change or add theories on
appeal. See State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). Therefore, “a
defendant may not object to the introduction of evidence on one ground, abandon this
ground, and assert a new basis or ground for the objection in this [c]ourt.” State v.
Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988).
Although we conclude that the Appellant waived the issue, we will nevertheless
briefly address his concern. “Rebuttal evidence is „any competent evidence which
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explains or is in direct reply to or a contradiction of material evidence introduced by the
accused.‟” State v. Thompson, 43 S.W.3d 516, 524 (Tenn. Crim. App. 2000) (quoting
Nease v. State, 592 S.W.2d 327, 331 (Tenn. Crim. App. 1979)). “The state is given the
right of rebuttal because it „does not and cannot know what evidence the defense will use
until it is presented at trial.‟” Id. (citing State v. Cyrus Deville Wilson, No. 01C01-9408-
CR-00266, 1995 WL 676398, at *4 (Tenn. Crim. App. at Nashville, Nov. 15, 1995)).
The admission of rebuttal evidence is within the sound discretion of the trial court, and
we will not overturn the trial court‟s decision absent an abuse of that discretion. See
State v. Dellinger, 79 S.W.3d 458, 488 (Tenn. 2002).
In the instant case, the Appellant adduced proof, including written documentation,
that reflected his address was on Cope Road. The State rebutted this evidence with its
own documentation, namely a certified copy of the Appellant‟s appearance bond, which
was signed by the Appellant just one month after his arrest for the instant offenses. The
appearance bond reflected that the Appellant‟s address was 1207 Imperial Drive. We
conclude that the appearance bond was proper rebuttal evidence.
D. Sufficiency of the Evidence
Initially, we note that the Appellant has phrased this argument in two separate
ways: (1) whether the trial court erred in not granting judgments of acquittal at the close
of the State‟s case and (2) whether the evidence is sufficient to support the Appellant‟s
convictions. This court has observed that “[t]he standard by which the trial court
determines a motion for judgment of acquittal at the end of all the proof is, in essence, the
same standard which applies on appeal in determining the sufficiency of the evidence
after a conviction.” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App.
2000). Therefore, we will address the Appellant‟s complaint as a challenge to the
sufficiency of the evidence.
On appeal, a jury conviction removes the presumption of the appellant‟s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating
to this court why the evidence will not support the jury‟s findings. See State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier
of fact could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).
Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the
appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
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The guilt of a defendant, including any fact required to be proven, may be
predicated upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999). Even though convictions may be established by different forms of
evidence, the standard of review for the sufficiency of that evidence is the same whether
the conviction is based upon direct or circumstantial evidence. See State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011).
The Appellant was charged with eight counts of violating Tennessee Code
Annotated section 39-14-203(a)(1), which provides that “[i]t is unlawful for any person
to . . . [o]wn, possess, keep, use or train any . . . dog . . . for the purpose of fighting,
baiting or injuring another such animal, for amusement, sport or gain[.]” The Appellant
was also charged with one count of violating Tennessee Code Annotated section 39-14-
203(a)(3), which provides that it is illegal for a person to “[p]ermit any acts stated in
subdivisions (a)(1) and (2) to be done on any premises under the person‟s charge or
control, or aid or abet those acts.” “Although „keep or maintain‟ is not defined in our
code, the definition of „keep‟ is „to watch over and defend,‟ „to have the care of,‟ or „to
cause to remain in a given place, situation, or condition.‟” State v. Laura Starkey, No.
M2005-02896-CCA-R3-CD, 2007 WL 1266581, at *5 (Tenn. Crim. App. at Nashville,
May 2, 2007) (quoting Webster‟s Third New International Dictionary 1235 (1993)); see
State v. Willard V. Fleming, No. E2014-01137-CCA-R3-CD, 2015 WL 799778, at *6
(Tenn. Crim. App. at Knoxville, Feb. 25, 2015), perm. to appeal denied, (Tenn. June 15,
2015). Moreover, possession may be actual or constructive. State v. Fayne, 451 S.W.3d
362, 370 (Tenn. 2014). “[A]ctual possession refers to physical control over an item.” Id.
However, constructive possession requires only that the Appellant had “the power and
intention at a given time to exercise dominion and control over . . . [the item] either
directly or through others.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (internal
quotations and citations omitted).
The Appellant was convicted of the lesser-included offense of facilitation of
dogfighting in each of the nine counts. “A person is criminally responsible for the
facilitation of a felony, if, knowing that another intends to commit a specific felony, but
without the intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.” Tenn. Code
Ann. § 39-11-403(a).
The Appellant contends that the State failed to prove that any specific individual
committed the offense of dogfighting and that the Appellant substantially assisted that
individual in committing dogfighting. Taken in the light most favorable to the State, the
proof adduced at trial reflects that 1207 Imperial Drive was owned by Travis Trent, the
Appellant‟s son. The Appellant, however, used the address on his checks, driver‟s
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license, vehicle registrations, and appearance bond. Additionally, when the police began
to search the home, the Appellant approached Sergeant McCready and stated that the
house was his. The search revealed several items relating to Liberty Farms Kennel,
which was established in Travis Trent‟s name. Photographs depicting Travis Trent and
pit bulls were found during the search. Police also found four pit bulls. Reever testified
that injuries and scars on each of the dogs were consistent with those of dogs that had
been fought. Reever asserted that various items found at the home related to dogfighting,
such as the “Sporting Dog Journal,” a copy of the “Cajun Rules,” and pedigrees reflecting
lineages that included famous fighting dogs. The wooden treadmill, which the Appellant
acknowledged making; flirt pole; spring pole; and harness found at the address were the
types of items frequently used in training dogs for fighting. Several nutritional
supplements for developing and recovering a dog‟s muscles were also found.
Additionally, the police found a “crash kit” for treating a dog‟s wounds after a fight. The
State adduced evidence that Travis Trent was in North Carolina for at least part of the
foregoing month. Security video footage depicted the Appellant coming and going from
the residence on four occasions during that month; on two occasions, the Appellant spent
the night. During the search, the police observed that the dogs were well-fed and had
adequate water. The jury could have concluded that the dogs were kept for the purpose
of fighting and that the Appellant at least helped in taking care of the dogs. We conclude
that, based upon the foregoing, that the evidence is sufficient to sustain the Appellant‟s
convictions.
E. Jury Instructions
On appeal, the Appellant challenges the trial court‟s decision to instruct the jury
on lesser-included offenses. The record reflects that after the conclusion of the defense‟s
proof, the trial court informed the parties that it intended to charge facilitation and
attempt as lesser-included offenses of the charged offense. Defense counsel responded
that the Appellant “want[ed] a[n] all or nothing charge. . . . Guilty as charged or not
guilty. That‟s the instruction he‟d like to have.” The court asked if defense counsel had
any legal reasons for requesting an “all or nothing” instruction, and defense counsel
conceded that he did not have a legal basis for the request.
The trial court said:
There are three people named in the indictment[, even though
the names of the others were redacted for the jury].
Ordinarily in those such cases the Court must charge
facilitation where other people are implicated by the
indictment, even though we‟ve heard very little proof in
regard . . .
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But I wouldn‟t expect to hear any proof on those [after
the redaction]. But ordinarily I have to charge that. And
even if the [Appellant] makes a request that I don‟t charge
anything embraced by the law, the case could still come back.
The trial court asked for the State‟s opinion, and the State agreed that the lesser-
included offenses should be charged. The trial court overruled the Appellant‟s objection
to the instruction on the lesser-included offenses.
On appeal, the Appellant asserts that the proof adduced at trial did not support the
lesser-included offense of facilitation. He further asserts that the trial court abused its
discretion by overruling defense counsel‟s objection to the instruction based upon the
Appellant‟s trial strategy. The State asserts that the trial court correctly instructed the
jury. We agree with the State.
A defendant has a “constitutional right to a correct and complete charge of the
law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). This court “must review the
entire [jury] charge and only invalidate it if, when read as a whole, it fails to fairly submit
the legal issues or misleads the jury as to the applicable law.” State v. Forbes, 918
S.W.2d 431, 447 (Tenn. Crim. App. 1995). A charge resulting in prejudicial error is one
that fails to fairly submit the legal issues to the jury or misleads the jury about the
applicable law. State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
Our code provides that an offense is a lesser-included offense if “[t]he offense is
facilitation of the offense charged.” Tenn. Code Ann. § 40-18-110(f)(2). Tennessee
Code Annotated section 40-18-110 further provides in pertinent part:
(b) In the absence of a written request from a party
specifically identifying the particular lesser included offense
or offenses on which a jury instruction is sought, the trial
judge may charge the jury on any lesser included offense or
offenses, but no party shall be entitled to any lesser included
offense charge.
....
(d) Prior to instructing the jury on the law, the trial judge shall
give the parties an opportunity to object to the proposed lesser
included offense instructions. If the defendant fails to object
to a lesser included offense instruction, the inclusion of that
lesser included offense instruction may not be presented as a
ground for relief either in a motion for a new trial or on
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appeal. Where the defendant objects to an instruction on a
lesser included offense and the judge does not instruct the
jury on that offense, the objection shall constitute a waiver of
any objection in the motion for a new trial or on appeal
concerning the failure to instruct on that lesser included
offense. The defendant’s objection shall not prevent the
district attorney general from requesting lesser included
offense instructions or prevent the judge from instructing on
lesser included offenses.
(Emphasis added).
A “trial court must provide an instruction on a lesser-included offense supported
by the evidence even if such instruction is not consistent with the theory of the State or of
the defense. The evidence, not the theories of the parties, controls whether an instruction
is required.” State v. Allen, 69 S.W.3d 181, 187-88 (Tenn. 2002); see Moore, 485
S.W.3d at 420-21. Accordingly, despite the Appellant‟s desire to have an “all or
nothing” charge, the trial court did not err in charging the jury on facilitation as long as
the evidence supported the instruction. As we earlier concluded, the evidence was
sufficient to support the conviction for facilitation of dogfighting. The Appellant is not
entitled to relief on this issue.
F. Sentencing
At the sentencing hearing, the trial court observed that the sixty-eight-year-old
Appellant had been convicted of eight counts of facilitation of dogfighting. Four of the
counts concerned “possessing” the dogs for fighting, and the other four counts concerned
“keeping” the dogs for fighting. The court merged the counts relating to each dog. The
Appellant was also convicted of facilitation of dogfighting based on the use of premises
for dogfighting, for a total of five counts of facilitation of dogfighting, a Class A
misdemeanor.
The trial court noted that the Appellant‟s presentence report reflected that the
Appellant had been convicted previously of felony marijuana possession, misdemeanor
marijuana possession, marijuana manufacturing, possession of unlawful drug
paraphernalia, and reckless driving. During the service of the Appellant‟s fifteen-year
sentence for the felony marijuana possession conviction, the Appellant twice violated his
parole. The Appellant told the preparer of the report that he began “light use” of alcohol
when he was thirty-one years old, that he had tried marijuana at age thirty-five, and that
although he had occasionally used marijuana, his last use was approximately twenty
years ago. The Appellant was retired but had worked as a medical coach, a welder, and a
metal fabricator.
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Phil Trent, the Appellant‟s brother, testified that the Appellant was close to the
Appellant‟s family, especially his four grandchildren. He said that while Travis Trent
had been in federal prison for the last one and one-half years, the Appellant had
“provided a lot of support and parenting” for Travis Trent‟s child. He stated that the
Appellant was a hard worker and that he could be “adventuresome” and “get into a little
mischief occasionally.” He opined that the Appellant would comply with the terms of
probation.
On cross-examination, Phil Trent acknowledged that previously the Appellant had
violated the terms of his parole by leaving Tennessee and going to Florida.
The Appellant testified that he had lived at 431 Cope Road for eleven years. The
year before that, he lived at 447 Cope Road. He was a high school graduate, had attended
some college, and had vocational training. He worked at a glass plant and then Eastman
for twenty-two years. In 1992, he moved to Michigan and worked at four companies:
Filter Systems, Welmation, Odyssey, and Thyseen. After being laid off, he moved to
Florida and worked at Bobcat Metal Fabricators. When the Appellant returned to
Tennessee, he worked with his brother for seven years “building medical X-ray coaches.”
After he retired, he began babysitting his youngest grandson, whose mother had
abandoned him when he was ten weeks old. The Appellant also did some woodworking.
The Appellant did not dispute his prior criminal history. He did, however, state
that his parole was revoked only once, not twice. He acknowledged that in 1992, while
he was on parole for his felony conviction, he left the state so he could work and pay for
his children‟s college education and that he accrued new misdemeanor charges that year.
Nevertheless, he maintained that he was not “pick[ed] . . . back up” until 2000. He was
released in 2001, and the felony sentence expired in 2008.
The Appellant said that although he had high blood pressure, his health was good
“for [his] age.” He asserted that he would have no problems abiding by the terms of
probation. The Appellant denied being involved in the instant crimes.
On cross-examination, the Appellant said that he knew he was on parole when he
left Tennessee, went to Michigan, and then to Florida. At that time, he was also avoiding
pending charges. He acknowledged that he left Eastman because he was fired.
The State submitted as an exhibit an “affidavit of records of the Tennessee
Department of Corrections, Department of Probation and Parole,” which reflected that
the Appellant‟s parole on his felony marijuana possession conviction was revoked on two
occasions, once in 1990 and again in 2000.
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The trial court found enhancement factor (1), that the Appellant had a previous
history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range. Tenn. Code Ann. § 40-35-114(1). The trial court further
found mitigating factor (1), that the Appellant‟s criminal conduct neither caused nor
threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1). The trial court
sentenced the Appellant to concurrent sentences of eleven months and twenty-nine days
for each conviction. The court ordered that the Appellant serve sixty days in confinement
and the remainder on probation.
On appeal, the Appellant challenges the trial court‟s denial of full probation. The
State asserts that the trial court correctly sentenced the Appellant. We agree with the
State.
The length, range, or manner of service of a sentence imposed by the trial court
are to be reviewed under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v.
Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive
sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the
standard to alternative sentencing). In conducting its review, this court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence 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 statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the appellant in his own behalf; and (8) the potential for rehabilitation or treatment.
See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98.
The burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.
Code Ann. § 40-35-401, Sentencing Comm‟n Cmts.
In misdemeanor sentencing, the “trial court need only consider the principles of
sentencing and enhancement and mitigating factors in order to comply with the
legislative mandates of the misdemeanor sentencing statute.” State v. Troutman, 979
S.W.2d 271, 274 (Tenn. 1998). Thus, the trial court is afforded considerable latitude in
misdemeanor sentencing. See State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App.
1999). The trial court retains the authority to place a defendant on probation immediately
or after a time of confinement. See Tenn. Code Ann. § 40-35-302(a).
An appellant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See Tenn. Code Ann. § 40-35-303(a). The trial court has the
authority to place a misdemeanant on probation either after service of a portion of the
sentence in confinement or immediately after sentencing. See Tenn. Code Ann. § 40-35-
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302(e)(1)(2). However, we note that, while certain Class C, D, or E felony offenders are
entitled to a presumption in favor of probation, the Appellant is entitled to no such
presumption regarding his misdemeanor sentences. See State v. Williams, 914 S.W.2d
940, 949 (Tenn. Crim. App. 1995); State v. Lora Ashley, No. M2008-01563-CCA-R3-
CD, 2009 WL 890890, at *3 (Tenn. Crim. App. at Nashville, Mar. 26, 2009).
Moreover, an appellant seeking full probation bears the burden of establishing his
suitability for full probation, regardless of whether he is considered a favorable candidate
for alternative sentencing. See State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.
1996); see also Tenn. Code Ann. § 40-35-303(b). To prove his suitability, the appellant
must establish that granting full probation will “subserve the ends of justice and the best
interest of both the public and the [appellant].” State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990) (internal quotation marks and citation omitted), overruled on
other grounds by State v. Hooper, 29 S.W.3d 1, 8 (Tenn. 2000). Notably,
[i]n determining one‟s suitability for full probation, the court
may consider the circumstances of the offense, the
defendant‟s potential or lack of potential for rehabilitation,
whether full probation will unduly depreciate the seriousness
of the offense, and whether a sentence other than full
probation would provide an effective deterrent to others likely
to commit similar crimes.
Boggs, 932 S.W.2d at 477.
The trial court observed that the Appellant had a prior criminal history of one
felony conviction and several misdemeanor convictions. Additionally, the record reflects
that the Appellant has previously violated parole on at least one occasion. The trial court
found that a period of confinement was appropriate. Given the considerable latitude
afforded to a trial court in misdemeanor sentences, we conclude that the trial court did not
err in ordering the appellant to serve sixty days of his sentence of eleven months and
twenty-nine days in confinement. See State v. Joel Scott Stephens, No. E2011-01774-
CCA-R3-CD, 2012 WL 1077145, at *4 (Tenn. Crim. App. at Knoxville, Mar. 30, 2012).
III. Conclusion
Based on the foregoing, we affirm the judgments of the trial court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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