NORMA McGEE OGLE, Judge.
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.
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 Detective
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,
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.
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 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."
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.
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 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 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.
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.
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.
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.
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
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
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
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.
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."
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."
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.'"
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
Further, the Tennessee Rules of Professional Conduct provide that
Tenn. Sup. Ct. R. 8, RPC 1.7(b);
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."
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.
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 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.
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.'"
In
Nonscientific expert testimony is based on "`specialized knowledge,' that is, the expert's experience."
Our supreme court has observed that an expert witness "may acquire the necessary expertise through formal education or life experiences."
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.
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."
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.
Although we conclude that the Appellant waived the issue, we will nevertheless briefly address his concern. "Rebuttal evidence is `any competent evidence which explains or is in direct reply to or a contradiction of material evidence introduced by the accused.'"
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.
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."
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.
Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom.
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.
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.'"
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 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.
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:
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."
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:
(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."
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.
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.
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.
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."
An appellant is eligible for alternative sentencing if the sentence actually imposed is ten years or less.
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.
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.
Based on the foregoing, we affirm the judgments of the trial court.
