          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 M. Freiberg, Judge


                      No. E2014-02531-CCA-R3-CD – Filed 12/15/2015


CAMILLE R. MCMULLEN, J., dissenting.

        I respectfully disagree with the conclusion reached by the majority in this case.
For the reasons that follow, I would remand this matter to the trial court for Tipton to be
placed in the community corrections program. In this appeal, Tipton contends that the
trial court relied upon an erroneous interpretation of Tennessee Code Annotated section
40-36-106 in finding him statutorily ineligible for placement in the community correction
program. He argues that the prior convictions relied upon by the court do not constitute a
pattern of prior violent offenses pursuant to Tennessee Code Annotated section 40-36-
102(11).1 Specifically, he contends that (1) reckless endangerment does not meet the
definition of a violent offense; (2) aggravated animal cruelty, as codified at Tennessee
Code Annotated section 39-14-212, is classified as a property offense and not a crime of
violence; and (3) the trial court improperly relied on Tennessee Code Annotated section
39-13-113(f)(1)-(3) (2006), rather than section 39-13-113 (2001), in finding that his 2001
charge for violating an order of a protection was a violent offense. Excluding the
convictions that the trial court improperly classified as crimes of violence, Tipton claims
the sole basis for the trial court‟s denial of his placement in the community correction
program was charges reflected in his presentence report that did not result in convictions,
which is likewise an improper basis to deny placement. Finally, Tipton argues that the
trial court erred in finding that his needs would best be served by confinement because he
arranged for placement in a drug rehabilitation program that had a bed waiting for him,
accepted responsibility for his actions, was found to be credible by the trial court, had

      1
          Section (11) provides as follows:

      “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
      reasonable calculated to produce such results and does not involve sexual contact or
      sexual penetration as those terms are defined in § 39-13-501.
only one prior felony conviction and nine misdemeanor convictions, and has never
violated probation. In response, the State contends that the trial court properly denied
Tipton placement in the community correction program. I agree with Tipton.

       As conceded by the majority, the trial court erred in its application of subsection
(F) of Tennessee Code Annotated section 40-36-106(a)(1). Additionally, as will more
fully be discussed below, the trial court failed to articulate its reasons for finding Tipton
ineligible for community corrections under subsection (c). Therefore, because the
sentence imposed by the trial court does not reflect a proper application of the purposes
and principles of our Sentencing Act, my review is for an abuse of discretion without a
presumption of reasonableness.

        Although the trial court recognized that section 40-36-106(B) makes a person
convicted of “property related” or “felony offenses not involving crimes against the
person” eligible for placement in the community corrections program, it considered the
elements of the offense of aggravated animal cruelty coupled with the facts supporting
the guilty plea in finding Tipton statutorily ineligible for placement in the community
correction program. In other words, the record shows that the trial court classified
aggravated animal cruelty as a violent offense against a person.2 Tipton correctly notes
that the aggravated animal cruelty statute has been classified by the Tennessee legislature
as a property offense, not an offense against a person. However, while animals are
“personal property for some purposes, they are different from other types of property,
because animals are living, sentient beings.” See Kirsten E. Brimer, Justice for Dusty:
Implementing Mandatory Minimum Sentences for Animal Abusers, 113 PENN ST. L.
REV. 649, 656 (2008). As such, courts have considered “malicious acts against animals
as acts of violence towards living creatures.” Id. (citing People v. Dyer, 115 Cal. Rptr. 2d
527, 532 (Cal. Ct. App. 2002) (even though abused animal was property of the abuser,
the perpetrator-abuser remained a threat to society and further concluding that such “a
crime against an inanimate object or property can qualify as a crime of force or
violence”)); see also People v. Garcia, 29 A.D.3d 255, 261, 812 N.Y.S.2d 66, 71 (2006)
(observing that “the crime [of animal cruelty] was established in recognition of the
correlation between violence against animals and subsequent violence against human
beings. . . [t]hus, it must be inferred that the Legislature‟s concern was with the state of
mind of the perpetrator rather than that of the victim.”). With this in mind, I can conceive
of circumstances under which aggravated animal cruelty may constitute a violent offense
for purposes of determining placement in a community corrections program.

        Nevertheless, the facts and circumstances here do not present such a case. The
        2
           A person commits aggravated animal cruelty when, “with no justifiable purpose, he
intentionally kills or intentionally causes serious physical injury to a „companion animal,‟ in a depraved
and sadistic manner[.]” T.C.A. § 39-14-212(a), (b)(1)-(2) (2006).
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record shows that the dogs in Tipton‟s care were malnourished and suffered from neglect.
One dog was found dead. Tipton testified that he used his dogs to hunt, and they suffered
injuries as a result. The trial court repeatedly stressed Tipton‟s honesty and accredited
his testimony that the injuries were inflicted by a bear and not him. Without more proof
evincing the violent nature of the offense, the trial court erred in finding Tipton
statutorily ineligible for placement in the community correction program due to his
aggravated animal cruelty conviction. See e.g., State v. Sandra Kay Webb and Tabitha
Nicole Webb, 130 S.W.3d 799, 803 (Tenn. Crim. App. 2003) (trial court sentenced
defendants, convicted of forty-seven counts of cruelty to animals, to community
corrections for eleven months and twenty-nine days for each count, with incarceration for
sixty days). Finally, the trial court improperly classified the violation of the order of
protection charge as a violent offense. There is no proof in the record that Tipton was
convicted of violating an order of protection or any of the numerous charges listed in the
presentence report. The presentence report in this case was woefully inadequate in
apprising the trial court of Tipton‟s criminal history as evidenced by the trial court‟s
repeated questions of the presentence report officer. While the majority stresses that the
charges in the presentence report indicated violence, there was no proof offered at the
hearing to support this assertion. To the extent the trial court relied upon the testimony of
Gray to establish a pattern of behavior indicating violence, the record is again devoid of
any present or past pattern of violent behavior. To the contrary, Gray testified that he had
not personally observed Tipton to be violent. The record reflects one conviction for a
violent felony offense, the 1998 felony reckless endangerment. As such, Tipton is
eligible for placement in the community correction program under subsection (a).

      After the trial court considered and denied placement in the community correction
program under subsection (a), the court considered subsection (c) of the Community
Corrections Act, known as the “special needs” provision, which states:

       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.

T.C.A. § 40-36-106(c) (2006). First, before being eligible for a community corrections
sentence under subsection (c), the offender must be eligible for probation. State v.
Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996) (citing State v. Staten, 787
S.W.2d 934, 936 (Tenn. Crim. App. 1989); State v. Lanny Crowe, No. 01C01-9503-CC-
00064, 1995 WL 392967, at *1 (Tenn. Crim. App. July 6, 1995)). Second, the trial court
must determine whether the offender is suitable for placement in the community
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corrections program by finding the following:

      (1) the offender has a history of chronic alcohol, drug abuse, or mental
      health problems, (2) these factors were reasonably related to and
      contributed to the offender‟s criminal conduct, (3) the identifiable special
      need (or needs) are treatable, and (4) the treatment of the special need could
      be served best in the community rather than in a correctional institution.

Id. at 439 (citing State v. Robert Wilson, No. 03C01-9209-CR-00305, 1993 WL 79626,
at *5 (Tenn. Crim. App. Mar. 22, 1993)).

       First, Tipton was eligible for probation because he was sentenced to eight years‟
incarceration. See T.C.A. § 40-35-303(a). The trial court determined that Tipton had a
significant, chronic history of substance abuse and that his problems were treatable. My
concern is that the trial court does not explicitly address whether Tipton‟s problems were
reasonably related to his criminal conduct. The court simply stated, “it boils down to
could these issues that are treatable be best served in the community rather than a
correctional facility.” After the trial court took the matter under advisement, it later
denied relief relying primarily on the previous hearing. Although the record reflects that
the trial court agonized over whether to place Tipton in the community correction
program, it did not make explicit findings regarding whether Tipton‟s drug addiction was
reasonably related to his criminal conduct or whether his addiction would be better
treated in the community rather than incarceration. The court alluded to Gray‟s
testimony and the fact that “there could be a problem,” but Gray testified that he had
never observed Tipton to be violent and would assist Tipton in his recovery. The trial
court did not provide its reasoning for denial of community corrections under subsection
(c) other than to say, “it [is] just too much violence,” which was not supported by the
record.

        The record reflects that Tipton had a history of alcohol and drug use which was
“reasonably related to and contributed to [Tipton‟s] criminal conduct[.]” The record
further demonstrates that Tipton‟s drug addiction is treatable, as evidenced by his
acceptance into the drug rehabilitation program, and that such treatment is best served in
the community rather than in a correctional institution. While the majority seems to
focus on the unsubstantiated charges within the presentence report, I believe it is
significant that Tipton had not been convicted of an offense since 2001, nearly sixteen
years prior to the instant offense. Moreover, aside from Tipton‟s minimal criminal
history, he had never violated his probation, had never received court-ordered treatment
for his drug or alcohol addiction, and had gone through a seven-year period of sobriety. I
would conclude that the trial court‟s denial of Tipton‟s placement in a community
correction program to serve his sentence is not supported by the record and that Tipton is
                                           -4-
a proper candidate for community corrections under subsection (a). Additionally, even if
there was some indication of violence based on his criminal history, as the majority
concludes, Tipton was certainly a proper candidate for service of his sentence under the
special needs provision of subsection (c). While the trial court has broad discretion in
sentencing, such discretion is undisturbed by an appellate court only if it is supported by
the record. See State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013) (noting that
Tennessee Code Annotated section 40-35-210(e) and State v. Bise, 380 S.W. 3d 682
(Tenn. 2012), specifically require trial courts to articulate the reasons for the sentence in
accordance with the purposes and principles of sentencing in order for the abuse of
discretion standard with a presumption of reasonableness to apply on appeal); see also
State v. Cecelia M. Beasley, No. 01C01-9801-CR-00018, 1998 WL 626989, at *2 (Tenn.
Crim. App., at Nashville, Sept. 16, 1998) (reversing and modifying judgment to place
defendant on community corrections where the record failed to show that the trial judge
considered the sentencing principles and failed to place on the record its reasons for
arriving at the final sentencing decision). Accordingly, I would reverse the judgments of
the trial court and remand for entry of judgments sentencing Tipton to community
corrections and for consideration of other terms and conditions that the trial court deems
appropriate pursuant to the Community Corrections Act.



                                                   _________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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