        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 4, 2015

                 STATE OF TENNESSEE v. ALISON BRIARS

                 Appeal from the Criminal Court for Shelby County
                       No. 14-00181 Paula Skahan, Judge


              No. W2014-02308-CCA-R3-CD - Filed October 7, 2015


The Defendant, Alison Briars, pleaded guilty in the Shelby County Criminal Court to
cruelty to animals, a Class A misdemeanor, with the length and manner of service of the
sentence to be determined by the trial court. See T.C.A. § 39-14-202 (2014). The court
sentenced the Defendant to eleven months and twenty-nine days, with sixty days’
confinement and the remainder to be served on supervised probation. On appeal, the
Defendant contends that the trial court (1) erred in denying judicial diversion and (2)
abused its discretion by not sentencing her to full probation. We affirm the judgment of
the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROGER A. PAGE, JJ., joined.

Blake D. Ballin, Memphis, Tennessee, for the appellant, Alison Briars.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pam Stark, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

        This case relates to police officers investigating a deceased dog call and finding
two pit bull terriers who had died of starvation. The officers found and removed three
live pit bull terriers from the home. The Defendant pleaded guilty to one count of animal
cruelty.
       At the guilty plea hearing, the Defendant stipulated to the following facts stated by
the prosecutor:

       On January 4th of 2013, [animal control] officers responded to . . . a dead
       dog call [at the Defendant’s home] where they found a dead [pit bull terrier]
       puppy and a dead adult [pit bull terrier].

               [A]nimal control officers called police officers [who] observed the
       dogs’ corpses and what appeared to be malnourishment of them and the
       bones that were sticking out of them and their emaciated look. [The
       officers] met with [the Defendant, who] indicated she owned the home and
       that those were her son’s dogs. Her son was 14 years old at the time.

        At the sentencing hearing, the Defendant testified that she had never had legal
trouble, that she had a GED, and that she worked as a housekeeper at a hotel. She said
that at the time of the dogs’ deaths, her son, daughter, and her daughter’s two children
lived at her home. She said that her son received a pit bull terrier puppy from her brother
when her son was five years old. She said that her son and his father were responsible for
feeding the dog. She said that at first, her son’s father helped her son care for the dogs,
and when her son was older “[h]e would go in the backyard and feed the dogs and he
would call his dad and tell his dad I ran out of dog food, can you get some dog food over
here. And he would always either bring the dog food or he would send him money.” The
Defendant’s family “ended up” with a female pit bull terrier who mated with their male
dog and had puppies. The Defendant said, “I never said anything else about the dog. I
was like y’all got to feed these dogs, take care of these dogs. That was the agreement”
between the Defendant and her son’s father.

       The Defendant said that two or three days before the dogs died, she collapsed from
dehydration and was taken to the emergency room. She said that at the time, she was
attempting to obtain custody of her grandchildren because “we had some conflicts” with
the Defendant’s daughter. The Defendant agreed that the dogs would not starve to death
over a short period and that she could see the dogs through a glass door in her home. She
said that “I don’t know exactly how much a dog’s supposed to eat[, but they were] being
fed every day. Sometimes two or three times a day.”

       The Defendant testified that on the day the police came to her home, her son’s
father came to the home and told the police that he was responsible for the dogs. In
response to a police officer’s observation that the dogs were underfed, her son’s father
asked “[How are] these dogs being underfed. Here’s the dog food.” She said he “showed
everything to them.” The Defendant unsuccessfully attempted to have her son’s father
appear in court to take responsibility for the dogs. The Defendant said that as the house
was in her name, she took responsibility for what happened to the dogs. The Defendant
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said that at the time the dogs died, she did not understand that although the dogs belonged
to her son, they were ultimately her responsibility. The Defendant said that she no longer
had animals in her home.

     Photographs of the deceased dogs were received as an exhibit. The photographs
showed that the dogs were emaciated to the point of appearing skeletal.

       The Defendant testified that she was afraid of the dogs and would “peep out the
door at the dogs[,]” but that she “never went in the backyard. I was sitting in the living
room on the couch and I may have asked [my children] . . . where’s the brown and white
puppy or where’s the tan puppy.” She said that her middle daughter and her son fed the
dogs. The Defendant said, “Two or three weeks before the dog[s] died . . . the dog[s] did
not look” as they did in the photographs. She said, “[I] just couldn’t understand how two
dogs [were] starving and the other pups [were] not starving. They [were] in the same
backyard.” The Defendant said someone from the animal shelter, which took custody of
the remaining three dogs, called and asked whether she was going to claim the dogs. The
Defendant refused to claim them. She denied that the pit bull terriers were being starved
to make them fight and said that she once refused to give a dog away to a man who
participated in dog fighting.

       When asked why she owed the juvenile court $6000, the Defendant testified that
she attempted to obtain custody of her grandchildren. The Defendant said that her
daughter “made a statement about [the Defendant’s son] and [he] had to go down and
give a statement and they arrested my son.” The Defendant said that her son was held in
juvenile detention for forty-two days and that she was charged $150 per night. She said
that she had enough money to feed the dogs. She said that she watched the dogs being
fed from inside the house and that she was sorry it happened.

       The State argued that the Defendant was not being “candid” with the trial court.
The prosecutor noted the Defendant’s testimony that she watched the dogs from the
living room and knew the individual puppies by color but that she was afraid of the dogs
and was unaware of their condition. The State argued that the offense warranted the need
for deterrence in the community and the need to send a message.

        The Defendant argued that she handled a chaotic family situation to the best of her
ability and that “the crime she committed was that she turned a blind eye to these dogs.”
The Defendant claimed that she was “amenable to rehabilitation,” that she was employed,
and that she now understood her responsibilities for animals living on her property. In
spite of the “graphic and disturbing” photographs of the dogs, the Defendant maintained
that a question remained relative to the dogs’ physical conditions at the times of death.
        The trial court found that the dogs were not fed and that the Defendant showed “a
total lack of interest in providing for these two dogs[.]” The court noted that the
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Defendant had a “pretty good” amenability to correction, that she had “okay” physical
and mental health, that she had a GED and a “decent” job, and that she had no previous
criminal record. Regarding the circumstances of the offense, the court found that the
offense was “really horrendous” and that the charged crime “probably should have been .
. . aggravated cruelty to animals.” The court found that deterrence was needed to prevent
future conduct by the Defendant. The court also found a need to deter the community
from similar conduct due to widespread poor treatment of pit bull terriers and that
“everybody that knows [the Defendant] should understand this conduct is not
acceptable.” The court denied judicial diversion on the basis it would not serve the
public interest. The court sentenced the Defendant to eleven months and twenty-nine
days, with sixty days in confinement and the remainder to be served on supervised
probation. This appeal followed.

                              I. Denial of Judicial Diversion

      The Defendant contends that the trial court erred in denying judicial diversion.
She argues that the court did not consider and weigh the appropriate factors and that in
making its determination, the court relied solely on the circumstances of the offense
without explaining its reasoning. The State responds that the court considered all of the
appropriate factors and did not err in denying diversion. We agree with the State.

       A trial court may order judicial diversion for certain qualified defendants who are
found guilty of or plead guilty or nolo contendere to a Class C, D, or E felony or a lesser
crime; have not previously been convicted of a felony or a Class A misdemeanor; and are
not seeking deferral for a sexual offense. See T.C.A. § 40-35-313(a)(1)(B)(i) (Supp.
2013) (amended 2014). The grant or denial of judicial diversion is within the discretion
of the trial court. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (citing T.C.A. § 40-
35-313(a)(1)(A)). When considering whether to grant judicial diversion, a trial court
must consider (1) the defendant’s amenability to correction, (2) the circumstances of the
offense, (3) the defendant’s criminal record, (4) the defendant’s social history, (5) the
defendant’s physical and mental health, (6) the deterrence value to the defendant and
others, and (7) whether judicial diversion will serve the ends of justice. State v.
Electroplating, 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996); see King, 432 S.W.3d at 326 (stating that
recent caselaw affecting the standard of review for sentencing determinations “did not
abrogate the requirements set forth in Parker and Electroplating, which are essential
considerations for judicial diversion”). “The record must reflect that the court has
weighed all of the factors in reaching its determination.” Electroplating, 990 S.W.2d at
229. If a trial court refuses to grant judicial diversion, “[T]he court should clearly
articulate and place in the record the specific reasons for its determinations.” Parker, 932
S.W.2d at 958-59. “The truthfulness of a defendant, or lack thereof, is a permissible

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factor for a trial judge to consider in ruling on a petition for suspended sentence.” State
v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984)

       On review of a decision to grant or deny judicial diversion, this court will apply a
presumption of reasonableness if the record reflects that the trial court considered the
Parker and Electroplating factors, specifically identified the relevant factors, and placed
on the record the reasons for granting or denying judicial diversion, provided any
substantial evidence exists to support the court’s decision. King, 432 S.W.3d at 327. If,
however, the trial court failed to weigh and consider the relevant factors, this court may
conduct a de novo review or remand the case for reconsideration. Id. at 328.

        The record reflects that the court considered all of the Electroplating factors. The
Defendant argues that the court did not explain its reasoning in weighing the factors,
made conclusory statements regarding deterrence, and injected its personal views into the
decision. The State responds that under King, any defects in weighing one factor can be
rectified if the court’s reasoning is supported by substantial evidence.

       The record reflects that the court placed significant weight on the “horrendous”
circumstances of the offense and a need to deter the Defendant in denying diversion. The
severity of the offense was demonstrated by the photographs, and the court noted the
Defendant’s callousness in her “total lack of interest” in the dogs, which went beyond the
conduct required for animal cruelty. In regard to deterring others, the court said,

       I am shocked at the way people in this city treat animals, and especially the
       way they treat pit bulls. They’re used for dog fighting, they’re bred until
       they can no longer breed, and then they’re turned out and left to fend for
       themselves in the streets. They’re horribly abused. In this case, starved to
       death.

       We note that the trial court discredited the testimony of the Defendant that she saw
the dogs being fed every day:

       What just doesn’t make any sense is that, supposedly . . . the dogs were
       eating and the dogs were not eating. . . I don’t believe food was being
       provided to them. I don’t know what the set-up was out there. Apparently,
       you don’t either because you’re too afraid to go into your own backyard.
       But it would have been obvious to anyone looking at these animals that
       they were just slowly starving to death . . . It doesn’t make any sense. And
       the only conclusion I can come to is just total lack of interest in providing
       for these two dogs at all.


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The court’s discrediting the Defendant and finding that the Defendant was disinterested
in the welfare of the dogs was relevant to the Defendant’s amenability to correction, to
the need for personal deterrence, and to the Defendant’s attitude and her lack of remorse.

        We conclude that the court identified and considered the relevant factors and
placed on the record its reasons for denying judicial diversion. Substantial evidence
exists to support the court’s decision. We conclude that the court did not abuse its
discretion in denying the Defendant’s request for judicial diversion. The Defendant is not
entitled to relief on this basis.

                                II. Denial of Full Probation

        The Defendant contends that the trial court abused its discretion by denying her
request for full probation. She argues that because she did not intentionally cause the
dogs’ deaths, “the circumstances of [her conduct were] not so egregious as to justify the
denial of full probation” and doing so contravened the purposes and principles of the
sentencing act. The State responds that the circumstances of the offense were particularly
“horrifying, shocking, and reprehensible” and that the court’s reliance on the
circumstances of the offense was consistent with the principle of avoiding depreciation of
the seriousness of the offense. We agree with the State.

       Although our supreme court has not considered whether the abuse of discretion
with a presumption of reasonableness standard applies to misdemeanor sentencing
determinations, it has stated that the standard “applies to all sentencing decisions,” and
this court has previously applied the standard to misdemeanor sentencing. See State v.
King, 432 S.W.3d 316, 324 (Tenn. 2014); see also State v. Sue Ann Christopher, No.
E2012-01090-CCA-R3-CD, 2013 WL 1088341, at *6-8 (Tenn. Crim. App. Mar. 14,
2013), perm. app. denied (Tenn. June 18, 2013); State v. Christopher Dewayne Henson,
No. M2013-01285-CCA-R3-CD, 2015 WL 3473468, at *5-6 (Tenn. Crim. App. June 2,
2015); T.C.A. § 40-35-401(d) (2014) (stating all sentencing questions pursuant to Code
section 40-35-401(a) are subject to the same standard of review).

        Although a trial court is not required to hold a misdemeanor sentencing hearing, a
court must permit the parties to address, in relevant part, the manner of service. T.C.A. §
40-35-302(a) (2014). Trial courts are granted considerable discretion and flexibility in
misdemeanor sentencing determinations. State v. Troutman, 979 S.W.2d 271, 273 (Tenn.
1998); see State v. Combs, 945 S.W.2d 770, 773-74 (Tenn. Crim. App. 1996). Although
trial courts are required to state findings of fact relative to imposing sentences for felony
convictions, courts are not required to do the same in imposing sentences for
misdemeanor convictions. Troutman, 979 S.W.2d at 274. In determining the manner of
service, a trial court must consider the purposes and principles of sentencing and the
enhancement and mitigating factors and must not impose arbitrary incarceration. T.C.A.
                                             -6-
§ 40-35-302(d); see Troutman, 979 S.W.2d at 274 (stating that “while the better practice
is to make findings on the record when fixing a percentage of a . . . sentence to be served
in incarceration, a . . . court need only consider the principles of sentencing and
enhancement and mitigating factors . . . to comply with the legislative mandates of the
misdemeanor sentencing statute”).

       A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant’s background. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court
is permitted to sentence a defendant to incarceration when:

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

       (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

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

T.C.A. § 40-35-103(1)(A)-(C) (2014); see Trotter, 201 S.W.3d at 654.

       We conclude that the trial court considered the appropriate purposes and principles
of sentencing in ordering the Defendant to serve sixty days in confinement and the
remainder of her sentence on probation. The record reflects that the court relied heavily
upon the need to avoid depreciating the seriousness of the offense. See T.C.A. § 40-35-
103(1)(B). The Defendant disregarded the welfare of two starving dogs on her property,
and the court discounted her assertion that she was unaware of the dogs’ deteriorating
health. Given the Defendant’s disregard for the dogs’ welfare and her lack of remorse for
her role in their deaths, the court’s ordering partial confinement was reasonable. The
Defendant is not entitled to relief on this basis.

      In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.


                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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