         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    March 12, 2002 Session

  STATE OF TENNESSEE v. JUDY JOHNSON and STANLEY JOHNSON

                  Direct Appeal from the Circuit Court for Gibson County
               No. 6803   George R. Ellis, Chancellor, Sitting by Interchange



                     No. W2001-01272-CCA-R3-CD - Filed June 26, 2002


The husband and wife defendants, Stanley and Judy Johnson, were convicted of eleven counts of
cruelty to animals, as the result of conditions at a kennel in Gibson County where they were keeping
approximately 350 dogs. Stanley Johnson was sentenced to eleven months and twenty-nine days
on each count, with all sentences to be served concurrently, and, as to these sentences, to serve
ninety days in the county jail with the remainder on probation. Judy Johnson was sentenced,
likewise, to eleven months and twenty-nine days on each count, with all sentences to be served
concurrently, but she was to serve six months before being put on probation. Both defendants were
fined $1000 in each of the eleven counts. On appeal, they argue that the trial court erred in allowing
testimony as to a prior similar complaint against Stanley Johnson and in denying total probation for
both. Additionally, they argue that the proof is insufficient to sustain the verdicts. We affirm the
judgments of conviction.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., joined.
GARY R. WADE, P.J., filed a concurring opinion.

Scott G. Kirk, Jackson, Tennessee, for the appellants, Judy Johnson and Stanley Johnson.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General;
Garry G. Brown, District Attorney General; Larry Hardister, Assistant District Attorney General;
and Hal Dorsey, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       In their appeal, the defendants present the following issues:

               I. The trial court erred in permitting the State to cross-examine
                  Stanley Johnson regarding a 1993 arrest for cruelty to animals.
                   II. The trial court made the following sentencing errors:

                        A. Utilizing inapplicable enhancement factors and ignoring
                           applicable mitigating factors;

                        B. Accepting letters from private citizens regarding sentencing;

                        C. Allowing testimony from a representative of the Dyersburg
                           Humane Society regarding restitution;

                        D. Accepting a “victim impact” statement from the Dyersburg
                           Humane Society; and

                        E.    Not granting each defendant complete probation.

                   III. The evidence was insufficient as to each count of the indictment
                        to support a conviction.

       We affirm the judgments of conviction and sentences.

                                                   BACKGROUND

        One of the issues presented on appeal is that the evidence is insufficient to support the
convictions. In view of the fact that both defendants were convicted of all eleven counts of the
indictment, we will detail the proof in ascertaining the sufficiency of the evidence. To do so, we first
will review generally the witnesses testifying in the matter and then consider their testimony which
was specific as to the three locations where the dogs were kept, as well as to each count of the
indictment.

                                                  STATE’S PROOF

      The State’s first witness was Don Curry, an investigator for the Gibson County Sheriff’s
Department. He testified that he had executed a search warrant at the defendants’ residence in
Humboldt on September 16, 1999, and then read his affidavit to the jury:1

                   On September 12th, 1999, I bought a puppy from Mrs. Judy Johnson
                   and in doing so I found the puppy to be very sick and it appeared to
                   have something wrong with its eyes. I took the puppy to a
                   veterinarian and the veterinarian said that the puppy was almost blind
                   and might even be – was almost blind and might even be blind. I


       1
           The affid avit, as read, v aries slightly fr om the typed v ersion. Ho wever, th e differen ces were not ma terial.

                                                             -2-
               then called Mrs. Johnson. I told her of the situation and she told me
               she would not refund any money but would replace the puppy with
               another puppy, so we agreed. On Monday, September 13th, 1999, I
               took the puppy to Mr. Stanley Johnson and Mrs. Judy Johnson’s
               house and she asked me – she asked me in but would not let me go
               past the first room. She then brought two puppies out to this room
               and I noticed the brown dog was getting sick and had no hair on his
               ears and places on his body. So, I picked the black puppy and took
               this puppy home. When I got this dog home I noticed this puppy was
               getting sick also. The next day, which was September 14th, 1999, the
               puppy seemed very sick and was still throwing up. So, I took the
               puppy to the veterinarian and that is where the puppy is now. The
               Sheriff’s Department has had several other complaints of this same
               nature in the recent past.

       He then continued with his testimony, narrating the showing of a videotape, which had been
recorded during the execution of the search warrant. We will set out the details of his testimony as
we review the proof for each count of the indictment.

        The State’s next witness was Dr. Tim Agee, a veterinarian who operated an animal hospital
in Milan. He testified as to his visit to the defendants’ kennel the day of the execution of the search
warrant, estimating there were approximately 350 dogs on the premises. The dogs were kept in three
structures: a large kennel, a mobile home located on the property, and inside the defendants’ house,
where three dogs were found. The remainder of his testimony will be detailed as to each location
where dogs were kept.

                                  Dwelling House (Counts 1 - 3)

                A. Count 1 - Black Pomeranian Within the Dwelling House

                      B. Count 2 - White Dog Within the Dwelling House

               C. Count 3 - Black Scottish Terrier Within the Dwelling House

        Much of the State’s proof as to these counts applied to all three, rather than being directed
to a single count.

       Don Curry was asked about the general conditions within the defendants’ house:

               Q. What about the general condition of the house? I’m not talking
                  about as to messiness, but I’m talking about the atmosphere in the
                  house or the odor?


                                                 -3-
               A. The house? The house was hot. There wasn’t no air on. It was
                  probably in the high 90s in the house and the house had a very
                  strong odor of it but not like the trailer did.

       Dr. Agee agreed that the conditions in the dwelling house were “[n]ot very good:”

                   [I]t was not clean, not very sanitary. There was feces in the
               bathtub where puppies had been kept in the bathtub. I found a whole
               toenail with a first bone laying in the hallway floor. There were three
               puppies that were caged in the living room in a single cage. It had a
               lot of feces and urine. Very much an ammonia smell in there as well.

        Dr. Agee said that some of the dogs kept in the house did not have access to water, their bowl
being turned over. He responded, when asked on cross-examination if more than 50% of the dogs
were in “good condition:”

               I couldn’t say that. Almost every single cage that I walked up to I
               could physically look at the dog and tell that there was something
               that needed to be done. I’m talking about eye infections, skin
               problems – whelping dogs. You know, the Miniature Pinscher that
               was whelping puppies had a severe skin problem.

        Dr. Agee agreed that some dogs, when whelping, do experience hair loss, but said: “Some
breeds do due to hormonal changes. That particular dog, though, had definite secondary staph
infections because there were – there were pustules all over the sides of that dog and that’s not
normal.”

                                   Mobile Home (Counts 4 - 6)

       Dr. Agee gave the conditions of the dogs in the mobile home a grade of “F minus.” Asked
about the “general conditions inside the mobile home,” Dr. Agee responded:

                   Worse than the kennel. When we opened the door and went
               inside the mobile home the ammonia smell was so bad that we didn’t
               even go in. We just immediately stepped back out because of that.
               Your eyes and nose and everything were burning. Once we did go
               inside it was – it was pretty bad. The – there were dogs that were –
               there was one dog that was a Miniature Pinscher that was in the
               process of delivering puppies. There was a dead puppy in the cage.
               She had another puppy that had just been born. The grates that the
               dogs were whelping on, the puppies could not stand up. Their legs
               were sticking through the grates and dangling down in two or three
               inches thick of feces and urine. There were puppies in cages – I

                                                 -4-
               remember one puppy was curled up sleeping in its food bowl because
               there was nothing in there.

                   The – there was a Yorkshire Terrier and a Dachshund that both
               looked to me to have very visible signs of mange. They basically had
               no hair over at least two-thirds of their body. Eye infections, very
               noticeable skin infections.

                   D. Count 4 - Yorkshire Terrier Within the Mobile Home

         According to Curry’s testimony during the showing of the videotape: “That dog right there
is the Yorkshire Terrier that’s in count 4. If you look at if from the shoulders back it has no hair and
it has all kinds of sores on it – on its face.”

        E. Count 5 - Two Adult Female Dogs with Puppies Within the Mobile Home

        Curry described the conditions in which these dogs were kept:

                    This dog right here is one of ‘em in Count 5. What she’s got
                there is one puppy. She’s trying to – I don’t know if she’s trying to
                protect it or what. I don’t want to make a decision on that, but she
                was – you can see how she was acting, though, and in the cage with
                her – after we get back up on it – you’ll see there was [sic] two dead
                puppies in the cage with her.

                 F. Count 6 – 90 to 100 Female Dogs Within the Mobile Home

        As to the 90 to 100 female dogs which were the subject of this count, Curry said:

                    It’s because if you see the shape of ‘em and it was so hot in there
                – half of ‘em in there did not have water. They all had food. They’re
                laying in all them feces and the dead dogs. The smell was just
                unbelievable.

       As he provided narrative during the showing of the videotape, Investigator Curry described
the condition of dogs which were caged in the mobile home:

                    That trailer right there was well over 100 degrees in there. It was
                so hot and it stunk so bad it just – it took your breath.

                    That there is just showing how high the feces was piled up under
                the cage that they was in.


                                                  -5-
               ....

                   This dog here is – that little puppy’s laying in front of it. You can
               see that it will move. It’s barely alive. It just kicks every now – and
               the dog did die later that night and in the cage, if you’ll look, there’ll
               be two other dogs in there dead with it. She had two puppies that was
               dead and that one there is just more or less kicking. It was on its back
               and couldn’t move.

               ....

                   That there is a little puppy’s feeding stuff hanging through the
               cage in that feces and stuff is why we shot that. See them puppies
               right there? Their feet and everything just go through there. That one
               right there is the second dog that we was talking about. The one on
               the right there is a dead puppy. The one in the middle is still alive,
               but then that one laying on the water bowl is dead. The one she’s got
               her head over now, that’s a dead puppy and that’s a dead one right
               there, and that one that’s in the middle there is alive still, but that one
               in the water bowl is dead and the one on the far side was dead.

       When asked to compare the smell within the trailer to one with which the jury might be
familiar, Curry said:

               A. Ammonia – I guess if you took like a bottle of ammonia and
                  stuck it right up to your nose and smelled it, that’s probably what
                  it – it did – I mean, it just took your breath.

               Q. Did it have any physical effect on you – the atmosphere out
                  there?

               A. Yes, sir. That’s what we was [sic] talking about. It was so hot
                  and just like when you walked in there you could actually feel
                  your skin burn. You could fee[l] your skin burn and just your
                  breathing – I don’t know how they went in there to feed the dogs.

                                       Kennel (Counts 7 - 11)

       As to conditions within the kennel, Dr. Agee said that they were “absolutely not” acceptable
for whelping. He first described the general conditions at the kennel:

               Well, it was – it varied from pen to pen, but overall it was pretty bad.
               Most of them – sanitation was not good. We did have some dogs that

                                                  -6-
               did not have water, some that did not have food. Some areas where
               the food had just been poured out on the ground and with all the feces
               on the ground it was not very clean.

        On a grading scale, he testified that, although the conditions of the dogs varied, he would
grade the overall condition of the kennel as a “D minus.” Feces in “atrocious amounts” was present
in the stalls. He spoke of the effect that this had on the dogs:

               Well, there’s a lot of things it – that it could cause – poor sanitation,
               skin problems, feet problems as well as respiratory and digestive
               problems, transference of hookworms and whipworms from one dog
               to the other and when that stays there for a long period of time they
               continue to pick them up and it makes for increased infestations.

                       G. Count 7 - All Dachshunds Within the Kennel

       During his narration of the videotape, Curry testified that the cage with the Dachshunds, the
subjects of Count 7, as well as other cages in the kennel, contained “piles and piles” of feces on the
concrete. One of the Dachshunds had hair missing from it.

                     H. Count 8 - All Scottish Terriers Within the Kennel

       As to the Scottish Terriers, the subjects of Count 8, which were shown on the videotape, Don
Curry testified:

                   There was [sic] five of ‘em in there and that pool of blood that
               you see over there is urine and blood mixed together – they was [sic]
               infected so bad.

                   All that stuff on the floor is feces.

                   You can see their water was green. They had food and water, but
               the water was green and when these dogs used the bathroom there
               was actually blood in their urine.

                       I. Count 9 - All Pomeranians Within the Kennel

       Curry described the cage which contained approximately ten Pomeranians, the subjects of
Count 9:

                  It was about a 4 by 12 foot – maybe 4 by 12 foot long or 10 foot
               long.


                                                  -7-
                  All of that on the floor is nothing but feces.

                   You can see the dog right here that we’re going to zoom in on
               right there. He’s matted up so bad and – he could barely walk. He
               was sick. He was in pitiful shape. That’s his fur that you’re looking
               at.

       Dr. Agee said that “there was a lot more [dogs] than should’ve been in one area that size.”
He related what he recalled about these dogs, saying “the feces in those runs was an extra large
amount, more than some of the others, and I noticed that several of those dogs had eye infections.”

                         J. Count 10 - All Poodles Within the Kennel

       Dr. Agee described the condition of the poodles, the subject of Count 10, kept in the kennel:

                   I guess they probably stick in my mind more than the rest of them
               because their general appearance without even being able to do a
               physical exam on one, their general appearance was not – not good
               doesn’t really describe it. It was really bad. They had not been kept
               at all. One dog was limping. There were very noticeable eye
               infections on most of the dogs. Large mats – what I would consider
               dreadlocks – just hanging off of some of these dogs all the way to the
               ground which was affecting mobility and also attributing to skin
               problems.

                      K. Count 11 - All Lhasa Apsos Within the Kennel

       Dr. Agee said that the Lhasa Apsos, the subjects of Count 11, also had “very large mats.
Their whole sides – some of them their whole sides were completely covered.” The mats, he said,
contributed to skin infections, and were “a great nesting area for external parasites like fleas.”

       Investigator Curry described another dog, whose breed he could not identify, in the kennel:

                   This here’s on the far side of the kennel. If you look, that dog
               right there’s missing hair off its head. It’s got some off its stomach.

                  This here’s – I don’t know what kind of dog you call that, but this
               here’s where you can see him when he’s walking through all that and
               you’ll see it’s maggots in his cage that they’ve been using going over
               every – going to the bathroom and – just in and out of it.




                                                -8-
                     There was just millions of maggots right there.2

       Dr. Agee said that, as constructed, the runs for the kennel were “not bad,” but that there were
too many in one area. He said “that there’s no way those runs had been cleaned in several days.”
He agreed that if the runs “were being cleaned and food and water provided on a regular basis,” his
only objection would be to the number of dogs in some of the kennels.

        On rebuttal, Dr. Agee identified a photograph of a pen which housed two or three Shar-peis,
saying that, based upon their size, he estimated the age of the maggots in the feces was “probably
three to four days.” He then said, on surrebuttal, that it “was very obvious” the pen was not being
cleaned on a daily basis.

        The State’s final witness was Derrick Avery, the supervisor of the Dyersburg Humane
Society. He said that, as he visited the defendants’ premises, he had seen a “carcass in the hallway
and it was decayed.” During the five to seven days he spent on the premises, in removing the dogs,
he spent at least eight hours a day the first three days. He considered it to be an emergency situation.
He said that approximately thirty-six of the dogs stayed at the Dyersburg Humane Society, where
general health care was provided for them. Approximately eighteen to twenty had hookworms and
whipworms, which are intestinal worms that come from unsanitary conditions.

                                            DEFENSE PROOF

        Stanley Johnson, testifying in his own behalf, was the first witness for the defense. He said
that he and his wife had been raising and selling puppies for about ten years, under the name “D J’s
Country Kennel.” He described the arrangement:

                 In the back of the house I had a large kennel with a number of runs
                 and it was all closed in and roofed over. It was in the dry. None of
                 the dogs were on dirt. This all had concrete runs and chain link
                 fences between and dog houses at the end.

        He said that the mobile home was used for female dogs having puppies: “[W]e had three tier
cages with catch pans under each cage so the fetus [sic] would fall through to the catch pan and not
into the next cage. They were set up with water and food. They were watered and fed on a daily
basis.”

        He said that about two and a half years previously, his wife had cornea transplants in both
eyes, and her health began to deteriorate. A week before the search warrant was executed, she had
breast surgery and was incapacitated for a short period. He said that her doctor had suggested that


        2
          Although the vid eotape does not show “millions” of maggots, there were a very large number in what
appeared to b e an approx imately four-fo ot-in-diameter po ol containing blo od and, perh aps, other substanc es.

                                                       -9-
she “be away from the stress of the kennel for a while,” and they had taken their camper to
Chickasaw State Park, which was about ten minutes away from his place of employment. He would
spend the night there and “go home and take care of the feeding and watering and come back and
go to work.” He said that he went to their home in Humboldt and checked the kennel on a daily
basis:

                Well, I would check on everything. Of course, pick up the mail and
                check all the runs, put out feed, fill up all the water buckets, check the
                trailer and they had to be watered daily and fed daily because they
                weren’t on the large feeders. In the kennel section where we had the
                4 by 12 foot runs they all had 25 pound feeders. So, they only had to
                be checked, you know, a couple of times a week and filled up as
                needed. But the trailer itself had to be checked and watered and fed
                everyday.

        He said that, at the time the search warrants were executed, he did not have an assistant.
Persons that were hired would “come out and work for a day and never come back and it was – we
found it very difficult to find any help.” He said that the temperature in the trailer, where the puppies
were, had to be kept at a higher temperature because the puppies could not “maintain their own
temperature.” They had used a window air conditioning unit to cool the trailer, but it “had just
recently quit operating.” He said that they had “a number of fans” operating to circulate the air. He
did not believe that the interior was hot to the dogs because the videotape showed that “they was in
there jumping around and moving around and they weren’t panting and dying of thirst or anything
like that.” He said that he had last been at the property the day before the search warrant was
executed. He found the first search warrant the following day when he had gone to feed and water
the dogs. The day after that, he returned and found another search warrant and that more of the dogs
had been taken. He said that he would have turned himself in if he had known there was a warrant
for his arrest. Looking at several of the photographs which had been admitted during the State’s
presentation of evidence, he said that there appeared to be nothing wrong with the dogs shown. He
said that it was common for female dogs having puppies to lose their hair as they were getting new
coats.

        He testified that his wife had been left about 100 dogs by another breeder who had died and
whose husband had no means of keeping the dogs. He said that, although the indictment referred
to a Lhasa Apso, they had none of that breed, but did have a Shih-tzu which was a similar, but
smaller, dog. On the day before the search warrant was executed, he “did what [he] could” to clean
the kennel. He said that “[t]here just wasn’t enough time with me working 80 hours as [sic] week
to have time to clean it thoroughly.” Although he had not looked specifically for maggots, he said
that he had not seen any that day. It only took a day for them to hatch in hot weather, he said.
Likewise, he said that he had not seen a dead dog at the kennel the day before the search warrant was
executed. He said that they were in the process of “downsizing trying to get out of the dog
business.” They had gone from 89 to 59 runs at their kennel.


                                                  -10-
       He agreed that some of their dogs had matted hair but stated that his “wife’s health did not
allow her to maintain the hair on the dogs as well as she used to.”

        When asked on cross-examination whether the conditions at the kennel were acceptable, he
said:
                  Well, what I’m saying is that my wife’s health condition and the
               number of hours that I was having to work we was doing the best we
               could at that short period of time. In the past the runs were kept clean
               and the dogs were kept groomed, but my wife’s health deteriorated
               and I had to work. She had to have insurance for, you know, her
               operation. Yeah, I would’ve like to have kept everything – all the
               dogs groomed and the runs washed down spotless, but it just wasn’t
               possible at that short period of time.

        He described when their problems had begun as they tried to keep up the kennel:

                   Well, it wasn’t – gradually things just sort of began to get a little
               worse. It, you know – we were trying to get out of the dogs because
               we knew her health wasn’t going to allow her to be able to take care
               of ‘em. We’d downsized. I had cut back on the number of runs. We
               had been able to reduce quite a few of the dogs we had, but, you
               know, if you’ve got 300 dogs it’s kind of hard to get rid of that
               quantity in a hurry. And, so, it was taking a little time but it was
               going down.

         He said that his wife had been instructed by her physician not to do any lifting the week
following her surgery, “[s]o, there was a week there that we could not take as good a care of the dogs
as we would’ve liked.” He said that his salary from Premier Manufacturing, where he was
employed, was “forty-something thousand” a year. He did not know how much they made each year
from their operation of the kennel. He said that it took “five, 10 minutes” to clean a twelve-foot run
with a water hose, and that he had cleaned all of the kennels in “one or two hours,” but sometimes
in as little as 45 minutes. It was difficult to properly clean the kennels “[f]or that short period of
time when [his] wife had her surgery.”

        Asked on cross-examination why they had not hired someone to assist with the kennel, he
said that his wife “wasn’t really making anything on the dogs.” He said that when he began having
trouble keeping up with the kennel that he had not hired an assistant because he “could not afford
the extra labor.” Asked why they had been willing to take the additional 100 dogs, he responded
“[h]ow do you tell a man that – whose wife has just died that, no, you’re not going to take the dogs
and she was a friend of the family?” When asked if he was saying that water in the cages had
“turn[ed] green within less than 24 hours,” that “[p]retty much so” this is what had occurred.



                                                 -11-
         The next defense witness was James Davenport, who was the son-in-law of the defendants.
He said that he had gotten two dogs from the defendants’ kennel, and both were in good condition.
The defendants’ kennel was “in good condition for the amount of dogs that they have.” Davenport
testified that he had helped the defendants with their dogs in the past, and the dogs were in “very
good condition” when he was there. He estimated that he had helped the defendants clean the kennel
“[m]aybe two or three times” during the two months preceding the execution of the search warrant.

        Ann Dover, the final witness for the defense, testified that she had known the defendants for
thirteen to fourteen years, including the entire time the defendants had been in the kennel business,
and had become friends with Judy Johnson. Ms. Dover said that she owned two dogs, a Pomeranian
and a Boston Terrier, that the defendants raised in their kennel. She stated that these dogs, as well
as other dogs she had kept for the defendants in the past, were in “perfect condition.” Ms. Dover had
visited the kennel on many occasions and did not think there was anything wrong about the number
of dogs confined at the kennel. She said that “[a]s long as [the dogs] were being took [sic] care of[,]
it was none of my business more or less.” She did not see any dogs with matted hair or maggots.
However, Ms. Dover admitted that she had not been to the kennel for approximately one year before
the day the officers shut it down and was unaware of the kennel’s condition at that time.

                                            ANALYSIS

       I. Testimony Regarding Stanley Johnson’s 1993 Arrest for Cruelty to Animals

        Stanley Johnson has presented as an issue on appeal that the trial court erred in permitting
the State to cross-examine him “regarding a 1993 arrest for cruelty to animals, in violation of Rule
608(b), Tenn. R. Evid.” As to this matter, he argues first that because the State failed to give notice
of the arrest, utilizing it was improper because the “door” had not been opened during direct
examination. Additionally, he argues that the trial court erred in not conducting a hearing to
determine if its probative value outweighed the prejudice it created.

       Previously, we have set out portions of Stanley Johnson’s testimony. The thrust of the
defense was that the kennel problems were of recent origin and resulted from Judy Johnson’s illness
and Stanley Johnson’s employment requirements. We now will review the series of questions and
answers which preceded the assailed question by the State. The cross-examination of the defendant
began in the following fashion:

               Q. Mr. Johnson, you did stand over here and look at the video as it
                  was being played, didn’t you?

               A. Yes. I did.

               Q. It’s no question about it that that was a video of the premises that
                  you and your wife own at 94 Pleasant Hill Road here in
                  Humboldt. Is that right?

                                                 -12-
      A. That’s right.

      Q. Or you did own at the time.

      A. That’s right.

      Q. And it’s no question about it that that video depicted the
         circumstances as the officers found them on that day when they
         went out and made it. Is that right?

      A. That’s right.

      Q. Are you telling this Court that you subjectively find those
         conditions depicted on that video acceptable to you as a dog
         breeder?

      A. Well, what I’m saying is that my wife’s health condition and the
         number of hours that I was having to work we was doing the best
         we could at that short period of time. In the past the runs were
         kept clean and the dogs were kept groomed, but my wife’s health
         deteriorated and I had to work. She had to have insurance for,
         you know, her operation. Yeah, I would’ve like to have kept
         everything – all the dogs groomed and the runs washed down
         spotless, but it just wasn’t possible at that short period of time.

      Q. Well, how long had things been falling to pieces out there, Mr.
         Johnson?

      A. Well, I don’t know that I agree with falling to pieces.

Later in the cross-examination, the following colloquy occurred:

      Q. Are you saying you and your wife operated this kennel for the
         previous 10 years and never had any problems?

      A. Oh, I wouldn’t say that we’ve never had any problems, but for the
         most part we didn’t have any problems.

      Q. Well, I’m asking you are you saying you operated it properly for
         the last 10 years? Is that what you were trying to tell me? That
         everything was just fine and the dogs were treated correctly for
         the last 10 years?


                                       -13-
           MR. KIRK: Your Honor, I think he answered that question. He
       said for the most part that everything had been fine.

           THE COURT: And your objection is?

           MR. KIRK: That he’s asked and answered that. He’s already
       asked that question and Mr. Johnson answered it. Now he’s asking
       it again and that’s not proper.

          GENERAL HARDISTER: Well, I thought it was being a little
       more specific. [] I wanted to ask him if he was saying that the dogs
       had been treated completely properly for the past 10 years.

           THE COURT: Go ahead.

       Q. Sir?

       A. In my opinion they have been.

       Q. Wasn’t there a period when – was she ever under a – any sort of
          supervision or any contact with authorities about the way the dogs
          were treated?

           MR. KIRK: Your Honor, I’m going to object to that and request
       a sidebar at this point in time.

           THE COURT: All right.

Following the sidebar conference, the trial court ruled as follows:

          THE COURT: I’m not following you. His testimony is the
       majority of the time there has not been any problems –

           MR. KIRK: Right.

          THE COURT: – and I think they’re entitled to go into that
       question.

           MR. KIRK: You’re ruling that they’re entitled to ask him about
       the fact that they were charged with misdemeanors, the same offense
       as this.



                                        -14-
                  THE COURT: If he says on the stand that they have had no other
               problems, I think he’s entitled to ask the question.

                   MR. KIRK: He said the majority of the time. He didn’t say that
               they’d never had any other problems. He just said the majority of the
               time. That’s one charge seven years ago. They’ve been in business
               10 years.

                    GENERAL HARDISTER: If he wants to hedge about talking
               about what sort of problems he has, and he’s obviously hedging about
               it, then I think I’m entitled to ask –

                   THE COURT: I think you are, too. I’m going to allow it.

        Trial court rulings on the propriety and form of cross-examination are subject to an abuse of
discretion analysis, see, e.g., State v. Hutchison, 898 S.W.2d 161, 172 (Tenn. 1994), cert. denied,
516 U.S. 846, 116 S. Ct. 137, 133 L. Ed. 2d 84 (1995); State v. Harris, 839 S.W.2d 54, 72 (Tenn.
1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746 (1993), and such rulings will
not be reversed on appeal absent an abuse of that discretion, see State v. Caughron, 855 S.W.2d 526,
541 (Tenn.), cert. denied, 510 U.S. 979, 114 S. Ct. 475, 126 L. Ed. 2d 426 (1993).

        Initially, we note that, through Investigator Curry’s reading of the search warrant affidavit,
jurors learned of prior complaints against the defendants. Relating that the second puppy he had
gotten from the defendants “seemed very sick and was still throwing up,” Curry then read: “So I took
the puppy to the veterinarian and that is where the puppy is now. The Sheriff’s Department has had
several other complaints on this same nature in the recent past.” Accordingly, without objection, the
jurors had earlier learned of complaints regarding the defendants’ selling other puppies which soon
became sick.

        The defendants argue that neither the State nor the trial court complied with the requirements
of Tennessee Rule of Evidence 608 and that, accordingly, it was error to allow cross-examination
as to the defendants’ prior problems with the kennel. This rule provides, in pertinent part:

               (b) Specific Instances of Conduct. Specific instances of conduct of
               a witness for the purpose of attacking or supporting the witness's
               credibility, other than convictions of crime as provided in Rule 609,
               may not be proved by extrinsic evidence. They may, however, if
               probative of truthfulness or untruthfulness and under the following
               conditions, be inquired into on cross-examination of the witness
               concerning the witness's character for truthfulness or untruthfulness
               or concerning the character for truthfulness or untruthfulness of
               another witness as to which the character witness being
               cross-examined has testified. The conditions which must be satisfied

                                                -15-
               before allowing inquiry on cross-examination about such conduct
               probative solely of truthfulness or untruthfulness are:

                   (1) The court upon request must hold a hearing outside the jury's
               presence and must determine that the alleged conduct has probative
               value and that a reasonable factual basis exists for the inquiry;

                   (2) The conduct must have occurred no more than ten years before
               commencement of the action or prosecution, but evidence of a
               specific instance of conduct not qualifying under this paragraph (2)
               is admissible if the proponent gives to the adverse party sufficient
               advance notice of intent to use such evidence to provide the adverse
               party with a fair opportunity to contest the use of such evidence and
               the court determines in the interests of justice that the probative value
               of that evidence, supported by specific facts and circumstances,
               substantially outweighs its prejudicial effect; and

                    (3) If the witness to be impeached is the accused in a criminal
               prosecution, the State must give the accused reasonable written notice
               of the impeaching conduct before trial, and the court upon request
               must determine that the conduct's probative value on credibility
               outweighs its unfair prejudicial effect on the substantive issues. The
               court may rule on the admissibility of such proof prior to the trial but
               in any event shall rule prior to the testimony of the accused. If the
               court makes a final determination that such proof is admissible for
               impeachment purposes, the accused need not actually testify at the
               trial to later challenge the propriety of the determination.

        The defendants argue that the trial court erred in not having a jury-out hearing to weigh the
probative versus prejudicial effect of this evidence. Additionally, they argue that the State is not
allowed to “open the door” during its cross-examination of the defendant, in an effort to make
admissible that which, otherwise, would not be admitted. The defendants argue that to do so would
be in violation of the comments to Rule 608, which provide, in pertinent part, as follows:

                   If the witness makes a sweeping claim of good conduct on direct
               examination, that claim may open the door to cross-examination
               without pretrial notice and with a lower standard of probativeness, as
               rebuttal of the broad claim would itself tend to show untruthfulness.
               Also, there may be instances where the prosecution would not
               discover the accused’s bad acts until after the trial begins, making
               pretrial notice impossible; in such cases immediate notice and a
               hearing on the issue before the accused testifies should satisfy the
               spirit of the rule.


                                                 -16-
       We agree that the State cannot, by carefully crafted but improper questions on cross-
examination, make admissible evidence which, otherwise, would be irrelevant. Thus, in State v.
West, 844 S.W.2d 144, 149 (Tenn. 1992), our supreme court concluded that the State could not set
up rebuttal testimony by asking improper questions of the defendant during its cross-examination:

                   In this case, West never made an issue of his good character. Not
               until the state asked him on cross-examination whether he was
               peaceful did he indicate that he was “as peaceful as anybody else.”
               West had never described himself as a non-threatening person before
               the state asked him if he had threatened Copas. The trial court clearly
               erred by allowing the state to attempt to show West’s propensity for
               violence by questioning him about his “peaceful” nature and about his
               prior threat.

Id.

        However, the situation in the instant case is quite different from that in West. This case was
defended on the premise that the kennel conditions were of recent origin and caused by factors not
controlled by the defendants. In response to the State’s question on cross-examination to the
defendant Stanley Johnson as to whether he “subjectively [found] those conditions depicted on that
video[tape] acceptable [ ] as a dog breeder,” he dodged the question, saying that they were “doing
the best” they could, and that “[i]n the past the runs were kept clean and the dogs were kept
groomed.” Thus, he had claimed that the conditions began with, and resulted from, his wife’s
medical problems. The State’s question on cross-examination as to whether he was “saying that the
dogs had been treated completely properly for the past 10 years” was reasonably related to the
defense presented as well as Stanley Johnson’s nonresponsive claim, deflecting a question requiring
only an affirmative or negative response. While we recognize that an attorney, on cross-examination,
cannot manipulate questions so as to make the inadmissible become admissible, we cannot conclude,
as the defense urges, that a witness making a volunteered claim, simply because it occurs during
cross-examination, is procedurally insulated from “opening the door” to related questions.

        The obligation of a witness to testify truthfully on cross-examination was explained in United
States v. Havens, 446 U.S. 620, 627, 100 S. Ct. 1912, 1916, 64 L. Ed. 2d 559, 566 (1980):

               In terms of impeaching a defendant’s seemingly false statements with
               his prior inconsistent utterances or with other reliable evidence
               available to the government, we see no difference of constitutional
               magnitude between the defendant’s statements on direct examination
               and his answers to questions put to him on cross-examination that are
               plainly within the scope of the defendant’s direct examination.
               Without this opportunity, the normal function of cross-examination
               would be severely impeded.


                                                -17-
        Given the defense that the kennel problems were recent, it would appear to be highly
probative that some years earlier, Stanley Johnson had been alleged to have committed cruelty to
animals at the kennel. Further, since the State was not then permitted to present extrinsic evidence,
if any they had, to impeach his explanation of the earlier charge, that its resolution required only
remedial work, and he had “enclosed the kennel, put a roof over all of it, new doghouses, concrete
on all the runs,” we cannot conclude that the revelation of this charge affected the outcome of the
trial.

        As to the claim that the trial court erred in not having a jury-out hearing, we note that the
defendants, themselves, requested a bench conference to make their argument as to inadmissibility,
and counsel then took up the matter out of the hearing of the jury. No claim is made as to how the
defendants would have benefitted from a jury-out hearing, as opposed to a bench conference. The
defendants, having requested and gotten a bench conference, cannot now profit from the fact that the
trial court did not overrule the request and, sua sponte, order a jury-out hearing. See Tenn. R. App.
P. 36(a).

        We reach a similar conclusion as to the complaint that the State did not provide pretrial
notice of this charge, as required by Rule 608. Given the defendant’s testimony, it is difficult to
envision how these charges would have been defended differently had notice been given. In view
of the graphic nature of the testimony and videotape, the fact the jury had learned of other recent
complaints against the defendants’ kennel, and the overwhelming proof of guilt, we conclude that
any error in allowing Stanley Johnson to be asked about the previous charge was harmless. See
Tenn. R. Crim. P. 52(a).

                                      II. Sentencing Issues

       The defendants present several sentencing issues which, because of their relationship, we will
consider together. The defendants’ claims as to sentencing are that the trial court erred in allowing
the humane association to prepare a victim impact statement for the presentence report, in allowing
into evidence approximately 500 letters supporting the prosecution, and in not granting both
defendants total probation. We will consider these issues.

                                    Victim Impact Statement

        The defendants argue that “it was improper for the Court to consider a ‘victim impact
statement’ from the Dyersburg Humane Society” because it was not the victim. The requirement for
such a statement is set out in Tennessee Code Annotated section 40-38-205:

                   Prior to imposition of sentence in a felony case, the department of
               correction shall prepare a written victim impact statement as part of
               the pre-sentence report on the defendant. The statement shall include
               applicable information obtained during consultation with the victim


                                                -18-
               or the victim representative. If the victim or victim representative
               cannot be located or declines to participate in the preparation of the
               statement, the department shall include a notation to that effect in the
               statement. If there are multiple victims and preparation of individual
               victim impact statements is not feasible, the department may submit
               one (1) or more representative statements.

        Although criticizing the fact that the humane association furnished the so-called victim
impact statement, the defendants do not specify any of its contents which were not accurate. For
proper sentencing, it is clear that the trial court needed complete and accurate information, including
detailed information as to the conditions of the dogs removed from the defendants’ premises. If their
conditions were less serious than originally thought, this information would be beneficial to the
defendants. Since it was the humane association which took custody of the dogs, and became
responsible for their care, it is difficult to envision what person or entity would have had more
relevant information about the dogs than the humane association or its representative. Objections
by the defendants to the fact of or amount of restitution sought by the humane association for its
expenses in care and treatment of the dogs could have been addressed by the defendants at the
sentencing hearing. Additionally, information from the humane association would appear essential
to a complete and accurate presentence report, regardless of the form in which it was provided.
Accordingly, we conclude that this assignment is without merit.

                                               Letters

        The defendants object also to the fact that the trial court accepted “into evidence”
approximately 500 letters from a number of states, the letters apparently coming from persons with
only secondhand knowledge of the facts. Based upon those letters which we reviewed, it appears
that information about the case was available on one or more internet websites or publications of
humane associations. Other than allowing these letters to be put into the record, over the objection
of the defendants, no other references were made to them. We note that the letters come from a
number of different states. The great public interest in the prosecution is shown by the volume of
the letters, which appear to come from humane associations, kennels, dog fanciers, and other
interested persons. Although objecting to the letters, the defendants have presented no authority as
to why their reception was improper. We note that letters sent directly to a trial court, received in
chambers or open court “should be filed in the cause and made a public record.” State v. Birge, 792
S.W.2d 723, 725 (Tenn. Crim. App. 1990). Further, we conclude that these letters were relevant to
establish the widespread interest in this matter, which is a consideration in ascertaining the deterrent
effect of the sentences. See State v. Hooper, 29 S.W.3d 1, 11 (Tenn. 2000). Accordingly, we
conclude that this assignment is without merit.

                                             Sentencing

       Misdemeanor sentencing is governed by Tennessee Code Annotated section 40-35-302.
Although otherwise entitled to the same considerations under the Sentencing Reform Act, a


                                                 -19-
misdemeanant, unlike a felon, is not entitled to the presumption of a minimum sentence. See State
v. Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App. 1995) (citation omitted). The procedure for
sentencing misdemeanants was explained by our supreme court in State v. Troutman, 979 S.W.2d
271, 273-74 (Tenn. 1998):

                   The sentencing considerations generally used in determining the
               manner of service for both misdemeanors and felony sentences are
               codified at Tenn. Code Ann. §§ 40-35-102, -103. See Tenn. Code
               Ann. § 40-35-102 (noting considerations used in determining whether
               confinement shall be imposed); Tenn. Code Ann. § 40-35-103
               (setting forth considerations to be used when issuing sentencing of
               confinement). In addition to the statutory considerations for issuing
               sentences of confinement, the misdemeanor sentencing statute merely
               requires a trial judge to consider enhancement and mitigating factors
               when calculating the percentage of a misdemeanor sentence to be
               served in confinement. Compare Tenn. Code Ann. § 40-35-302 (“to
               consider the purpose of this chapter, the principles of sentencing, and
               the enhancement and mitigating factors set forth herein”) with Tenn.
               Code Ann. § 40-35-210(f) (stating court shall place on record either
               orally or in writing what enhancement or mitigating factors it found).

         A misdemeanor sentence, as opposed to a felony sentence, contains no sentence range. Since
a sentencing hearing is not mandatory, see Tenn. Code Ann. § 40-35-302(a), trial courts are not
required to explicitly place their findings on the record. In misdemeanor cases, the trial judge, who
is able to observe firsthand the demeanor and responses of the defendant while testifying, must be
granted discretion in arriving at the appropriate sentence.

        In cases of misdemeanor sentencing, the sentencing court has the authority to place the
defendant on probation either after service of part of the sentence in confinement, or immediately
after sentencing. See Tenn. Code Ann. § 40-35-302(e)(1)-(2).

      The basis for a trial court’s determining whether confinement is appropriate is controlled by
Tennessee Code Annotated section 40-35-103(1), which provides as follows:

               Sentences involving confinement should be based on the following
               considerations:

                  (A) Confinement is necessary to protect society by restraining a
               defendant who has a long history of criminal conduct;

                   (B) Confinement is necessary to avoid depreciating the
               seriousness of the offense or confinement is particularly suited to



                                                -20-
               provide an effective deterrence to others likely to commit similar
               offenses; or

                   (C) Measures less restrictive than confinement have frequently
               or recently been applied unsuccessfully to the defendant[.]

       At the conclusion of the sentencing hearing in the instant matter, the trial court sentenced the
defendants:

                   The Court finds that Judy Fay Johnson and Stanley Paul Johnson
               have been found guilty of 11 counts of cruelty to animals. Bonds
               [sic] are set at $1000 in each of the 11 counts which was done by a
               jury of good and lawful citizens of Gibson County.

                   Over 350 puppies and dogs were victims of this gross violation of
               the law. The victims of this crime were animals that could not speak
               up to the unbelievable conduct of Judy Fay Johnson and Stanley Paul
               Johnson that they suffered. Several of the dogs have died and most
               had physical problems such as intestinal worms, mange, eye
               problems, dental problems and emotional problems and socialization
               problems.

                   Since dogs have entered domestic service of human beings, they
               have given solace and companionship when needed. They have
               helped hunt, guard flocks, and in ice and snow have pulled sleds.
               They have rescued people when lost in snow drifts. They act as
               police in sniffing out crimes, and they become eyes for those who
               cannot see. They guard homes and possessions. All this, these
               creatures do for kind, humane treatment.

                  Watching this video of the conditions that these dogs were
               subjected to was one of the most deplorable things this Court has
               observed in the 22 years in the course of being on the bench.

                   And though, Judy Fay Johnson, you urge this Court to take into
               consideration the mitigating factors that you’ve been sick up to two
               years prior to them being rescued from your care. You say you’ve
               been sick. You talked about reducing the population, but the only
               thing you did was sell puppies.

                  The Court finds that you have a previous history of criminal
               convictions or criminal behavior, that the offense involved more than
               one victim, that the victims were particularly vulnerable, that you


                                                 -21-
have a previous history of unwillingness to comply with conditions
of a sentence involving release into the community, and that you
abused the position of public or private trust.

    The Court further finds that you were charged with this exact
same charge in 1993, and after a period of probation, the matter was
nollied.

    Judy Fay Johnson, you’re sentenced to 11 months and 29 days in
each of the 11 counts of cruelty to animals. These will be run
concurrent. Further, this Court finds that probation would not serve
the ends of justice, nor be in the best interest of the public, nor would
this have a deterrent effect for such gross behavior.

    Therefore, you, Judy Fay Johnson, shall serve six months of your
sentence on condition that you make restitution to the Dyersburg
Humane Society for $3242.84 for the expenses involved in freeing
those dogs from their purgatory and your payment of the fine and
costs in full. You are further prohibited from ever running or owning
any animal kennel or owning any animal as a pet. Your release
classification status shall be 75 percent.

    Stanley Johnson, the Court finds that your offenses involve more
than one victim. The victims were particularly vulnerable. You
treated the victims with exceptional cruelty. You abused the position
of public or private trust. You were charged with the exact same
charge in 1993 that after a period of probation was nollied.

    You are sentenced to 11 months and 29 days in each of the 11
counts. Further, the Court finds that probation would not serve the
ends of justice, nor be in the best interest of the public, nor would this
have a deterrent effect for such gross behavior to animals. You shall
serve 90 days of your sentence on condition that $3242.84 be paid to
the Dyersburg Humane Society for the expenses involved in
removing the helpless dogs from your custody. You are further
prohibited from ever running or owning any animal kennel or owning
any animal as a pet.

    There are those who would argue that you should be confined in
a house trailer with no ventilation or in a cell three by seven with
eight or ten other inmates with no plumbing, no exercise and no
opportunity to feel the sun or smell fresh air. However, the Courts of
this land have held that such treatment is cruel and inhuman, and it is.


                                  -22-
               You will not be treated in the same way that you treated these
               helpless animals that you abused to make a dollar.

        In their brief, the defendants argue not as to the imposition of the eleven-months-and-twenty-
nine-days sentence as to each count, but, instead, that both should have received total probation.
They assert that “[t]he Court did not observe or properly follow the sentencing considerations and
principles of the Reform Act” in that a period of partial confinement was not the “least severe
measure necessary to achieve the purposes for which the sentence is imposed.” They interpret that
“deterrence” was the only reason expressed by the trial court in ordering confinement.

        We respectfully disagree with these arguments. First, it is clear that the trial court observed
and followed the principles of the Sentencing Reform Act in imposing punishment and determining
that each defendant should serve a portion of the sentence in confinement. The court noted the
“unbelievable conduct” of the defendants, detailed the injuries to the dogs in their care, and stated
that “the conditions that these dogs were subjected to was one of the most deplorable things this
Court has observed in the 22 years in the course of being on the bench.” As to each defendant, the
court then determined that “probation would not serve the ends of justice, nor be in the best interest
of the public, nor would this have a deterrent effect for such gross behavior to animals.”
Accordingly, we conclude that the trial court found, as to each defendant, that “[c]onfinement [was]
necessary to avoid depreciating the seriousness of the offense” and was “particularly suited to
provide an effective deterrence to others likely to commit similar offenses.” Tenn. Code Ann. § 40-
35-103(1)(B). We will next consider the defendants’ complaints as to the enhancement and
mitigating factors applied by the trial court.

        Referring to the notice filed by the State as to enhancement factors for sentencing, the
defendants argue that the trial court erred in applying these factors and in not applying applicable
mitigating factors.

         The defendants argue that the trial court, in sentencing, failed to properly consider as
mitigating factors the facts that: their conduct “neither caused nor threatened serious bodily injury,”
see Tenn. Code Ann. § 40-35-113(1); the conditions at the kennel resulted from the fact of Judy
Johnson’s surgery one week before the “incident” and Stanley Johnson’s working “extensive hours
out of town,” see Tenn. Code Ann. § 40-35-113(3); “Judy Johnson’s physical condition significantly
reduced her culpability for the offense,” see Tenn. Code Ann. § 40-35-113(8); it was unlikely that
their conduct was motivated by a sustained intent to violate the law, see Tenn. Code Ann. § 40-35-
113(11); and, at the preliminary hearing, they surrendered the “custody and control” of the dogs, few
of the dogs required “medical attention,” the dogs “were in relatively good condition and that the
only complaint was as to the condition of their confinement,” and the defendants “have no intention
of returning to the business of raising dogs for sale,” see Tenn. Code Ann. § 40-35-113(13).

       We respectfully disagree with the defendants’ assertion that these mitigating factors were
applicable. First, assuming arguendo that this factor is even applicable in animal cruelty
prosecutions, the claim that the defendants’ conduct “neither caused nor threatened serious bodily


                                                 -23-
injury,” ignores the fact that the dogs, many with physical and emotional problems, were caged in
deplorable conditions, and that some of the puppies had died. Likewise, the various mitigating
factors claiming partial absolution because of Judy Johnson’s illness and Stanley Johnson’s work
requirements ignores their responsibility to provide care, by employees or friends, for the dogs. The
kennel was intended to be a money-making operation and their legal responsibility to provide care
did not end simply when it became difficult to do so. As for the defendants “surrendering” the dogs
at the time of the preliminary hearing, it appears that a number of the dogs had already been removed
from the premises by that time. Thus, as for these and the other proffered mitigating circumstances,
we conclude that the trial court did not err in declining to apply them.

        Additionally, the defendants argue that the trial court erred in accepting as enhancement
factors: that the offenses involved more than one victim, the indictments covering all of the dogs,
Tenn. Code Ann. § 40-35-114(3); that the victims were “particularly vulnerable because of age or
physical or mental disability,” Tenn. Code Ann. § 40-35-114(4); and that the defendants “abused a
position of public or private trust,” Tenn. Code Ann. § 40-35-114(15). Judy Johnson argues that the
trial court erred in concluding that she 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), and that she “had a previous history of unwillingness to comply with the conditions of a
sentence involving release in the community,” Tenn. Code Ann. § 40-35-114(8).

         As to these factors, we first note that it is somewhat difficult to convert enhancement factors
to a cruelty to animals case, many of the factors contemplating a human as the victim of the crime.
Since the defendants’ argument is not as to the length of the sentences, but that they should have
received total probation, we would be limiting the trial court’s flexibility in misdemeanor sentencing
if we engaged in the same analysis as for sentencing in a felony case. See State v. Johnson, 15
S.W.3d 515, 518 (Tenn. Crim. App. 1999) (“the trial court has more flexibility in misdemeanor
sentencing than in felony sentencing”), perm. to appeal denied (Tenn. 2000). The trial court ordered
partial confinement as to both defendants because of the gross nature of their acts and the need for
deterrence. The letters sent to the prosecutor from throughout the United States demonstrate the
wide interest in this matter and establish that, because of the publicity, the punishment would have
a deterrent effect. See State v. Hooper, 29 S.W.3d 1, 11 (Tenn. 2000). The geographic spread,
including Tennessee, from which these letters came supports the trial court’s conclusion as to the
deterrent effect of the sentences.

        The record demonstrates that the trial court considered the facts of the case and the applicable
sentencing principles, as was required. Given the latitude afforded to the court in misdemeanor
sentencing, we conclude that the sentences were proper. Likewise, since misdemeanants are not
entitled to a presumption regarding alternative sentencing, Tenn. Code Ann. § 40-35-102(6), we
cannot conclude that the trial court erred in denying either defendant total probation.

       Accordingly, we affirm the sentences of both defendants.




                                                 -24-
                                  III. Sufficiency of the Evidence

       The defendants argue that the evidence adduced at trial was insufficient as a matter of law
to convict them of the eleven counts of the indictment.

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to
be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas,
754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial
judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the
theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated
the rationale for this rule:

                    This well-settled rule rests on a sound foundation. The trial judge
                and the jury see the witnesses face to face, hear their testimony and
                observe their demeanor on the stand. Thus the trial judge and jury are
                the primary instrumentality of justice to determine the weight and
                credibility to be given to the testimony of witnesses. In the trial
                forum alone is there human atmosphere and the totality of the
                evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). When the credibility of the witnesses was resolved by the jury in
favor of the State, the appellate court “may not reconsider the jury’s credibility assessments.” State
v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000), cert. denied, 533 U.S. 953, 121 S. Ct. 2600 (2001).

       Each count of the indictment charges that the defendants “did unlawfully and knowingly
confine an animal in a cruel manner and did unreasonably fail to provide necessary care for an
animal in their custody . . . in violation of T.C.A. 39-14-202[.]”

         As to the inadequacy of the proof, the defendants argue that “[the] structures in which all of
[their] dogs were confined were described as adequate.” They describe Dr. Agee’s objection to the
kennel area was “the number of dogs per kennel and the unsanitary conditions;” as to the mobile

                                                 -25-
home, “the temperature . . . and the unsanitary conditions;” and as to “the three dogs in the cage in
the house, the objection was that feces and urine were present in the cage and the water bowl was
turned over.” Thus, the defendants argue, “the veterinarian was of the opinion their care was
acceptable, if one assumes someone was changing the water daily and feeding them daily and
cleaning the cage.”

        We disagree with the defendants’ cast of the evidence. First, the assumption that the dogs
were being fed and watered and their cages cleaned on a daily basis is belied by the videotape which
shows little food and water available, and virtually none, if any, of it clean, as well as a substantial
accumulation of feces throughout the kennel. Although Stanley Johnson testified that he was caring
for the dogs on a daily basis, the jury was not bound to accept his testimony as truthful.

        Taking the evidence in the light most favorable to the State, which prevailed at the trial on
each of the eleven counts of the indictment, the evidence reveals that the defendants maintained,
under horrific conditions, in excess of 350 dogs on their premises, housing them in a kennel, a trailer,
and inside their residence. The conditions were filthy and unsanitary in each of these locations.
Poor, or nonexistent, means of cooling or even circulating the air caused it to be very foul, with an
ammonia-like smell. A number of the dogs were not provided food or water and what food was
made available was often unsanitary, with water green in color. Many of the dogs and puppies were
kept in very crowded and inhumane conditions, apparently without necessary veterinary treatment
being provided for worms, mange, eye and skin problems. Feces was allowed to accumulate
throughout the facility, with huge numbers of maggots infesting it in one cage. The coats of some
of the dogs had very extensive matting problems. Some of the puppies were kept on wire mesh,
which allowed large amounts of feces to collect on the unemptied trays beneath their cages, and
trapped them, as their legs slipped through, making them immobile. Thus, we conclude that a
reasonable trier of fact could have found that the defendants unlawfully and knowingly confined the
dogs in a cruel manner and unreasonably failed to provide necessary care, as alleged in the
indictment.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgments of the trial court are
affirmed.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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