           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                              Assigned on Briefs July 21, 2015

                STATE OF TENNESSEE v. NOAH KEITH TIPTON

                    Appeal from the Circuit Court for Monroe County
                         No. 14165     Andrew Frieberg, Judge


                No. E2014-02531-CCA-R3-CD – Filed December 15, 2015


       A Monroe County Grand Jury indicted the Defendant, Noah Keith Tipton, for one
count of initiation of a process intended to result in the manufacture of methamphetamine
(“the methamphetamine charge”) and fourteen counts of aggravated cruelty to animals.
Pursuant to a negotiated plea, the Defendant pleaded guilty to the methamphetamine
charge and two counts of aggravated cruelty to animals and was sentenced to eight years
with the manner of service to be determined at a sentencing hearing.1 Following the
sentencing hearing, the trial court found that the Defendant was “not eligible for
punishment in the community” under Tennessee Code Annotated section 40-36-106(a)(1)
but took under advisement the Defendant’s claim that his “special needs” were treatable
and could best be served in the community as provided by subsection -106(c). Following
a second hearing in which no additional proof was taken, the trial court found that the
Defendant’s special needs could be best served in the Department of Correction rather
than in the community corrections program for Monroe County. In this appeal, the
Defendant argues that the trial court erred in denying his placement in the community
corrections program. Upon our review, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROGER A.
PAGE, J., joined. CAMILLE R. MCMULLEN, J., filed a separate dissenting opinion.

C. Richard Hughes, District Public Defender, and Stephen M. Hatchett, Assistant District
Public Defender, Madisonville, Tennessee, for the appellant, Noah Keith Tipton.




       1
          The purpose of the sentencing hearing was to determine if the Defendant was eligible to serve
his sentence in the community corrections program.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; R. Steven Bebb, District Attorney General; and Paul Rush, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                 FACTUAL AND PROCEDURAL BACKGROUND

       On September 15, 2014, the Defendant pleaded guilty to the methamphetamine
charge and two counts of aggravated cruelty to animals and was sentenced to eight years.
During the plea colloquy, the State provided the following factual basis in support of the
guilty plea:

              On April 30th, 2014, Chris Williams of the Monroe County Sheriff’s
      Department went to 165 Tipton Lane in Vonore for a complaint of animal
      cruelty. When he got there, he discovered several dogs on the property in
      various states of illness or neglect. He was unable to make contact with the
      property owner, and Bobby Wright was notified. Officer Wright and
      Captain Acuff returned on May 1st. The owner[,] Noah Tipton[,] was
      present. They found the animals to be ill, neglected, and one canine that
      was dead. The next day a search warrant was executed at the residence and
      a female [Redtick Coonhound] was found to be thin with sores on the
      inside of her legs and without food or water. That was also the day . . . that
      they noticed . . . a sharp chemical odor coming from the residence while
      they were serving legal process. In plain view was a lithium battery, had
      been cut open. Defendant was advised of his rights[.] “[The Defendant]
      stated that if we would have been 10 minutes later, it would have been a
      full-blown meth lab.” Further search revealed, produced several items used
      in the manufacture of methamphetamine, as well as one active lab.

       On November 17, 2014, the trial court conducted a sentencing hearing. The
Southeast Tennessee Community Corrections Investigation Report (“presentence report”)
and a letter from Miracle Lake, a residential treatment facility in McMinn County, were
entered into evidence. The Miracle Lake letter stated that there was a bed available for
the Defendant to begin his two-month treatment program beginning October 2, 2014.
The presentence report included the following explanation of the methamphetamine and
aggravated animal cruelty charges provided by the Defendant:

      I had got divorced from my wife and she had got back on dope and I went
      out and got some trying to keep her and lost her anyway and got hooked on
      it anyway and I asked someone to teach me how to shake a bottle and they
      did so I started it to keep my addiction up.
                                           -2-
      I had turned my dogs loose on a bear and they got eat up and one died and a
      couple hurt bad and that[’]s how I got my charge.

       In addition to the Defendant’s charges in this case, the presentence report lists
twenty-nine criminal charges arising out of eighteen separate incidents since 1994. In
May 1998, the Defendant was charged with felony reckless endangerment involving a
firearm. The Defendant was charged and convicted of criminal trespass in 1999, while
the felony reckless endangerment charge was pending. On March 2, 2000, the Defendant
pleaded guilty to felony reckless endangerment and was sentenced to two years’
probation. On March 27, 2000, less than a month after he pleaded guilty to felony
reckless endangerment, the Defendant was charged with assault. In August 2001, he was
charged with violation of an order of protection, a second offense DUI, and driving on a
revoked license. He was again charged with reckless endangerment on August 15, 2003,
and the presentence report shows he was “convicted” of that charge on April 26, 2004.
In February 2006, he was charged with three counts of “possession by a convicted felon.”
The presentence report does not identify what the Defendant possessed or state whether
or not he was convicted. In February 2014, he was charged with domestic assault.

      At his sentencing hearing, the Defendant explained the incident that led to his
1998 felony reckless endangerment conviction in the following exchange:

      Q. (By General Rush) Just to make it clear, you’re not saying the reckless
      endangerment with a deadly weapon was dismissed, right?

      A. No, sir, no, sir.

      Q. Okay. And that involved what?

      A. It involved about two—about a half-gallon of moonshine, a[n] eight ball
      of dope, and a gun, and another guy with a gun, and an argument over a
      woman.

      …

      Q. [H]ow did you endanger anybody and what did you do it with?

      A. Well, a .22 went off and it hit the van door, a bullet hit the van door
      parked at, at the guy’s house.

      Q. Okay. How did it go off?

      A. I guess with my finger.


                                          -3-
The Defendant then stated he “was shooting up in the air” and did not mean to hit the van
door.

      At his sentencing hearing, the Defendant explained the 2014 domestic assault
charge, which he incurred approximately two months before he was arrested on the
methamphetamine and animal cruelty charges, as follows:

       Yes, sir. I, I, I did have that charge come in on me. My wife hit me, and I
       mean, she, she hit me with a liquor bottle and broke my tooth and, you
       know, we had us an argument, and I laid her out at my cousin’s house and I
       went, went on my way, and her mama come and got her and, you know,
       and yes, sir, I did come to jail. It was all dismissed.2

       The following dialogue is from the testimony of Randall Scott Gray at the
sentencing hearing. Mr. Gray was the Defendant’s preacher:

       Q. [By defense counsel] Is it your concern, when you said they can’t come
       on your property, is it your concern that if he’s around those folks, that he’s
       not gonna make it?

       A. He’s not gonna make it. I mean, as long as he was with me and we were
       going to church and doing different stuff together—we was going hunting
       together and stuff—he was all right. All right, when I seen the trouble
       coming is when he married the second wife, and they started losing weight,
       and I started questioning him, and I went to his house, and he prom—he
       made me promise him—I’m gonna go ahead and say this in the courtroom.
       He made me promise him that if, if he ever got back on drugs or anything
       that I would come and whoop him.

Mr. Gray was asked a series of questions by the State concerning the Defendant’s
demeanor. Mr. Gray said that the Defendant was sometimes violent and that he “was a
totally different person” when “high or drunk.” When asked whether the Defendant was
loud and violent when high or drunk, Mr. Gray answered that the Defendant was “10
foot tall and bulletproof.”

       After the parties argued their respective positions, the trial court engaged in a
lengthy oral analysis and determined—based on the Defendant’s conviction of a felony
offense in which he used a weapon, his past pattern of behavior indicating violence, and a
pattern of committing violent offenses—that the Defendant was not statutorily eligible
for punishment in the community under Tennessee Code Annotated section 40-36-

       2
          Gary Conner, Program Manager for Southeast Tennessee Community Corrections, testified that
the criminal background check did not show a resolution for the domestic assault.
                                                -4-
106(a)(1)(D), (E), and (F). Noting that its assessment of violence was not going to
change, the trial court then took the matter under advisement for a later hearing to
consider whether the Defendant’s “issues could best be served in the community[.]”3 On
December 17, 2014, the trial court denied the Defendant’s request to serve his sentence in
the community corrections program finding that the Defendant’s special needs could be
best served in the Department of Correction rather than in the community corrections
program in Monroe County.

        This appeal then followed.

                                                  ANALYSIS

        The Defendant contends the trial court relied upon an erroneous interpretation of
Tennessee Code Annotated section 40-36-106 to find him statutorily ineligible for
placement in the community corrections program. We disagree. The trial court correctly
found the Defendant was statutorily ineligible under Tennessee Code Annotated section
40-36-106(a)(1)(E) for punishment in the community. Next, the Defendant argues that
the trial court erred in finding that his special needs would best be served by confinement.
Again, we disagree. The trial court did not abuse its discretion in determining the special
needs of the Defendant, who had a chronic history of drug and alcohol abuse and who
pleaded guilty to initiating the process to manufacture methamphetamine, could be best
served in the Department of Correction.

       Because the trial court sentenced the Defendant within-range and considered the
purposes and principals of the sentencing act, we review challenges to the denial of a
community corrections sentence under the abuse of discretion standard, accompanied by
a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012);
see also State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).

               Criteria for Eligibility under Tenn. Code Ann. § 40-36-106(a)(1)

       The intent of the Community Corrections Act was to “[e]stablish a policy within
the state to punish selected, nonviolent felony offenders in front-end community based
alternatives to incarceration, thereby reserving secure confinement facilities for violent
felony offenders.” Tenn. Code Ann. § 40-36-103(1) (2010). Eligible offenders under the
Community Corrections Act include:

        (A) Persons who, without this option, would be incarcerated in a
        correctional institution;


        3
          At the later hearing, the trial court also mentioned section 40-36-106(a)(1)(C) as a basis for
finding the Defendant ineligible.
                                                     -5-
        (B) Persons who are convicted of property-related, or drug- or alcohol-
        related felony offenses or other felony offenses not involving crimes
        against the person as provided in title 39, chapter 13, parts 1-5;

        (C) Persons who are convicted of nonviolent felony offenses;

        (D) Persons who are convicted of felony offenses in which the use or
        possession of a weapon was not involved;

        (E) Persons who do not demonstrate a present or past pattern of behavior
        indicating violence; and

        (F) Persons who do not demonstrate a pattern of committing violent
        offenses.

Id. § 40-36-106(a)(1)(A)-(F) (2010) (emphasis added). Subsections (A),(B),(C), and (D)
provide eligibility criteria applicable only to the offense or offenses for which an offender
is seeking punishment in the community. In contrast, subsections (E) and (F) establish
eligibility criteria in which past behavior or conduct, in addition to the nature of the
offense or offenses for which an offender is seeking punishment in the community, may
be considered.

       Simply because an offender meets the minimum requirements under the
Community Corrections Act “does not mean that he is entitled to be sentenced under the
Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App.
1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987)). Instead,
the Act’s criteria “shall be interpreted as minimum state standards, guiding the
determination of eligibility of offenders under this chapter.” Tenn. Code Ann. § 40-36-
106(d) (2010).

      Because the trial court analyzed each of the six criteria for eligibility set out in
Tennessee Code Annotated section 40-36-106(a)(1) during the initial sentencing hearing,
we will address each of its findings.

       Section 40-36-106(a)(1)(A). The court acknowledged that the Defendant would be
incarcerated in a correctional institution for his convictions unless he was eligible for
community corrections.4


        4
          The Defendant had been found to be unfit for probation due to his history of chronic alcohol
and drug abuse. See State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).


                                                   -6-
       Section 40-36-106(a)(1)(B). The trial court correctly characterized aggravated
cruelty to animals as a property-related offense and the methamphetamine charge as a
drug-related offense for the purposes of finding the Defendant eligible under subsection
(B).

       Section 40-36-106(a)(1)(C). After correctly characterizing aggravated cruelty to
animals as a property-related offense, the trial court, citing Tennessee Code Annotated
sections 39-14-212(a) and (b), stated:

       You know, it is a property offense, but when you look at those elements—
       and again, I do find [the Defendant] to be a credible witness—but it talks
       about intentional, with cruelty, with a depravity, with a sadistic manner. It
       talks about torturing and maiming animals. That seems like a violent
       felony offense.

       The trial court correctly noted that subsection (B) specifically includes a reference
to “crimes against the person as provided in title 39, chapter 13, part 1-5,” whereas
subsection (C) does not reference crimes against the person. In reconciling this
difference, the trial court stated that the violence involved with aggravated cruelty to
animals could make the Defendant ineligible for community corrections under subsection
(C).

       For the purposes of eligibility for placement in the community, “nonviolent felony
offense” is defined in section 40-36-102 as:

       (11) “Nonviolent felony offender”/“nonviolent felony offense” means a
       person committing a felony offense, or a felony offense, that does not
       involve serious bodily injury, as that term is defined in § 39-11-106, or
       death to a victim or bystander, does not involve threats reasonably
       calculated to produce such results and does not involve sexual contact or
       sexual penetration as those terms are defined in § 39-13-501[.]

Tenn. Code Ann. § 40-36-102(11). The definition of serious bodily injury in section 39-
11-106 applies to all of title 39, including, if relevant, to the aggravated cruelty to animal
statute.

        In the hearing concerning the Defendant’s special needs, the trial court referenced
subsection (C) as one criteria on which it determined that the Defendant was not an
eligible offender. It is not necessary for us to determine whether aggravated cruelty to
animals is or is not a nonviolent felony offense as defined in Tennessee Code Annotated
section 40-36-102(11), because, as will be discussed below, even if aggravated cruelty to
animals is a nonviolent offense, any error in finding the Defendant ineligible for

                                             -7-
community corrections under subsection (C) is harmless because an offender must meet
all of the criteria set forth in section 40-36-106(a)(1) to be eligible for punishment in the
community.

        Section 40-36-106(a)(1)(D).     As the trial court correctly recognized, the
Defendant’s prior conviction of felony reckless endangerment involving the discharge of
a firearm does not make the Defendant ineligible for punishment in the community under
subsection (D) because subsection (D) applies only to the offense for which the
Defendant is seeking to be placed on community corrections and not to a prior offense.5

        Section 40-36-106(a)(1)(E). Although the prior conviction for felony reckless
endangerment cannot be a basis to find the Defendant ineligible under subsection (D), the
trial court properly used the prior conviction as a factor for determining eligibility under
subsection (E). This court has previously held that reckless endangerment involving the
use of a firearm qualifies as a violent offense. See e.g., State v. Andrea Nichole Bean,
No. M2011-02767-CCA-R3-CD, 2012 WL 6698060, at *5 (Tenn. Crim. App. Dec. 26,
2012). Based on the presentence report, in addition to the felony reckless endangerment
involving a firearm, the Defendant had been charged with assault, violation of an order of
protection, another reckless endangerment, and assault by domestic violence.
Concerning the assault by domestic violence, a charge the Defendant incurred only two
months before the Defendant was charged with initiation of the process to manufacture
methamphetamine and aggravated cruelty to animals, the Defendant admitted getting into
an altercation with his wife in which he “laid her out.” Although the presentence report
fails to provide sufficient information to determine whether the Defendant was convicted
of several of the charges he incurred, the presentence report together with the
Defendant’s testimony and the testimony of Mr. Gray is more than sufficient to show that
the Defendant has “demonstrate[d] a present or past pattern of behavior indicating
violence.” See Tenn. Code Ann. § 40-36-106(a)(1)(E) (emphasis added). The trial court
properly found that the Defendant was ineligible for punishment in the community under
subsection 106(a)(1)(E).

       Section 40-36-106(a)(1)(F). Whereas subsection (E) involves a “pattern of
behavior indicating violence,” subsection (F) involves a “pattern of committing violent
offenses.” Obviously, these two subsections are intended to apply to different factual

        5
           Later in the sentencing hearing, the trial court referenced Tennessee Code Annotated sections
40-36-106(a)(1)(D),(E), and (F) in finding that the Defendant was not eligible for punishment in the
community. Based on the trial court’s prior recognition that subsection (D) applied only to the offenses
for which the Defendant was seeking to be placed on probation, it appears that the reference to subsection
-106(a)(1)(D) was simply a mistake. If the trial court intended to find the Defendant ineligible under
subsection -106 (D), the trial court erred. However, as will be discussed in the paragraph below, any error
was harmless because an offender must meet all of the criteria under section 40-36-106(a)(1) to be
eligible for punishment in the community.
                                                   -8-
situations. Based on the wording of the two subsections, subsection (F) appears to be
more stringent than subsection (E). Although we have found no cases holding that
subsection (F) applies only to convictions,6 that appears to be a logical interpretation.
Although the presentence report shows that the Defendant had been charged with
offenses indicating violence on several occasions, the presentence report shows only one
conviction for a violent offense. One conviction is not a pattern. Andrea Nichole Bean,
2012 WL 6698060, at *5.

        We conclude that the proof is insufficient to support the trial court’s finding that
the Defendant demonstrated a pattern of committing violent offenses under subsection
(F). However, once again, any error in finding the Defendant ineligible for community
corrections under subsection (F) is harmless because an offender must meet all of the
criteria set forth in section 40-36-106(a)(1) to be eligible for punishment in the
community, and the Defendant was not eligible under section 40-36-106(a)(1)(E).

                       “Special needs” Under Section 40-36-106(c)

       Once the trial court determined the Defendant was not eligible for punishment in
the community under Tennessee Code Annotated section 40-36-106(a)(1), it was required
to address the Defendant’s request to be placed in the community corrections program
under the “special needs” provision of section 40-36-106(c), which provides:

       Felony offenders not otherwise eligible under subsection (a), and who
       would be usually considered unfit for probation due to histories of chronic
       alcohol or drug abuse or mental health problems, but whose special needs
       are treatable and could be served best in the community rather than in a
       correctional institution, may be considered eligible for punishment in the
       community under the provisions of this chapter.

Tenn. Code Ann. § 40-36-106(c) (2010).

       The trial court properly addressed the criteria set out in subsection (c). First, as
discussed above, the trial court determined the Defendant was not eligible for punishment
in the community under subsection (a). Second, the trial court determined that the
Defendant was eligible for probation based on the offenses for which he was convicted
and his eight-year sentence. See Tenn. Code Ann. § 40-35-303(a). Third, the trial court
found that the Defendant was unfit for probation because of his chronic history of alcohol
and drug abuse. Fourth, the trial court determined that the defendant’s “special needs”
were treatable. Therefore, the issue which the trial court had to decide was whether the
       6
          It is notable that subsection (B), (C), and (D) uses the term “convicted” to explain which
offenders are eligible for punishment in the community, whereas subsection (F) uses the phase “do not
demonstrate a pattern of committing offenses” for the same purpose.
                                                -9-
Defendant’s special needs could be best served in the community corrections program or
in the Department of Correction.

       As this court has previously stated:

       Moreover, when imposing community corrections sentences, courts must
       remain mindful of the limited positions for placement within local
       programs and correspondingly limited resources for the treatment of the
       offender’s special needs. Accordingly, the appellant’s rehabilitative
       potential is central in the selection process. Each case must be guided by
       its individual facts and circumstances. Additionally, given their ability to
       review the offender’s demeanor and characteristics first hand, trial courts
       are in the best position to ascertain an offender’s amenability to a
       community corrections program.

State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997). Trial courts are also in
the best position to determine if an ineligible offender’s special needs “could be served
best in the community rather than in a correctional institution.” Tenn. Code Ann. § 40-
36-106(a)(2). Resources vary from community to community and the local trial judge is
in the best position to know what resources are available in the community.

       In this case, when analyzing where the special needs of the Defendant could be
best served, the trial court specifically mentioned its concerns arising from the testimony
of the Defendant’s minister about the Defendant’s violent demeanor when he was drunk
or high and the tendency of the Defendant to drink or do drugs when he was around the
wrong people. Additionally, the trial court expressed concern that the Defendant would
relapse into abusing alcohol or drugs if his sentence was served in the community
corrections program for Monroe County. The trial judge was in the best position to
gauge the critical factor of where the Defendant’s special needs could be best served.

        Trial courts have broad discretion in sentencing, and this court will not disturb a
trial court’s decision absent a clear abuse of that discretion. Caudle, 388 S.W.3d at 278-
79; see also Bise, 380 S.W.3d at 707. Although the trial court did not make findings
concerning what resources were available in the community corrections program, the
finding were sufficient to show that the trial court weighed the options and determined
that the Defendant’s special needs could be best served in a correctional institution.

                                     CONCLUSION

       It is clear from the record that the trial court agonized over its decision. Although
the findings of the trial court could have been better articulated, or even better yet
incorporated in its written order denying community corrections, the record is sufficient
                                              -10-
to show that the Defendant was not eligible for punishment in the community pursuant to
Tennessee Code Annotated section 40-36-106(a)(1)(E) and that the trial court did not err
in finding pursuant to Tennessee Code Annotated section 40-36-106(c) that the
Defendant’s special needs could be best served in the Department of Correction. We,
therefore, affirm the judgments of the trial court.



                                                 _________________________________
                                                 ROBERT L. HOLLOWAY, JR., JUDGE




                                          -11-
