State of Tennessee v. Patricia Adkisson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 17, 2001 Session

STATE OF TENNESSEE v. PATRICIA ADKISSON

Appeal from the Circuit Court for Hickman County
No. 99-5039CR-I Donald P. Harris, Judge

Nos. M2000-01079-CCA-R3-CD, M2000-02319-CCA-R3-CD - Filed 10/12/01

The defendant, Patricia Adkisson, who was charged with 253 counts of animal cruelty and one count
of tampering with evidence, was convicted on three counts of animal cruelty. See Tenn. Code Ann.
§§ 39-14-202, 39-16-503. The trial court imposed three consecutive terms of 11 months, 29 days,
and granted supervised probation. As a condition of probation, the defendant was prohibited from
owning any caged animals for a period of five years. The defendant appealed. Later, the trial court
revoked probation and a second appeal followed. In this consolidated proceeding, the defendant
claims that (1) the trial court erred by denying her motion to suppress evidence gathered during the
initial search of her property; (2) the evidence was insufficient; (3) the sentence was improper; and
(4) the trial court lacked authority to revoke her probation. Because the search of the defendant's
premises violated constitutional principles, the trial court erred by failing to suppress the evidence
which led to the convictions. Accordingly, the convictions are reversed and the causes are
remanded.

Tenn. R. App. P. 3; Judgments of the Trial Court Reversed; Causes Remanded

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

John P. Cauley, Franklin, Tennessee (on appeal), and Douglas T. Bates, III, Centerville, Tennessee
(at trial), for the appellant, Patricia Adkisson.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and
Judson Phillips and Kenneth K. Crites, Assistant District Attorneys General, for the appellee, State
of Tennessee.
 OPINION

On December 17, 1998, Kathy Wilkes-Myers and Mary Sexton, the vice-president and
president, respectively, of the Hickman County Humane Society, traveled to the residence of the
defendant, Patricia Adkisson, to investigate an anonymous complaint regarding the care she provided
to her animals. Deputy Richard Warden of the Hickman County Sheriff's Department accompanied
Ms. Wilkes-Myers and Ms. Sexton to the site. After viewing the property, Ms. Sexton and Officer
Warden left to obtain a search warrant. Although Ms. Wilkes-Myers remained on the property, she
did not conduct any further investigation during the absence of Ms. Sexton and the officer. Upon
their return and in reliance upon a search warrant, Ms. Sexton photographed the defendant's animals
and their living areas. There were one hundred ninety-five animals, consisting mostly of a variety
of canine breeds. As a result of the search, nine dogs were removed from the property and taken to
a veterinary hospital.

The next morning, Ms. Wilkes-Myers and Ms. Sexton returned to the property, accompanied
by a second officer and the defendant's attorney. Upon their arrival, they discovered that a majority
of the animals had been moved to another location. Ms. Wilkes-Myers and Ms. Sexton removed
those that remained. On advice of counsel, the defendant eventually surrendered a large number of
other dogs, which were purportedly those that had been moved during the night. A total of 253
animals were evacuated from the defendant's property.

I
First, the defendant asserts that the trial court erred by denying her motion to suppress the
evidence gathered from the initial search of her property. At the hearing on the motion, the
defendant contended that the search was illegal because it was conducted without a warrant and
without her consent; she also argued, and the state conceded, that the search warrant was
inappropriately executed by members of the Humane Society rather than the Hickman County Sheriff
or a deputy. See Tenn. R. Crim. P. 41(c). At the conclusion of the hearing, the trial court
determined that because the search warrant was improperly executed, all of the evidence collected
pursuant thereto would be excluded. The trial court denied the motion, however, as it related to the
initial warrantless inspection:

I don't think that the state has carried[] . . . its burden of proving that there was a
willful and knowing consent to search her property given by Ms. Adkisson . . . .
[T]hen the issue becomes whether there was sufficient state involvement to result in
a suppression of what was seen by Ms. Sexton and Ms. Wilkes-Myers. . . . And I
find that there was not.

The officer accompanied these two ladies to Ms. Adkisson's property, but it's
clear that he was doing that at their request. His only participation, really, was giving
some advice, and even that advice indicates that it was not his action, he told Ms.
Adkisson that he believed that these ladies had probable cause to believe that there

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 was cruelty to animals, and he probably was correct in that. But, still, what he told
her indicated that it was their action and not his.

* * *

So I don't think there was sufficient state action . . . until the time of the
search warrant, to result in the suppression of any evidence.

The defendant asserts that Ms. Wilkes-Myers and Ms. Sexton were acting "under color of
law." She contends that their violation of the Fourth Amendment of the United States Constitution
and Article I, Section 7 of the Tennessee Constitution must be attributed to the state. The state
argues that Ms. Wilkes-Myers and Ms. Sexton were not state actors and, in the alternative, that the
defendant consented to their inspection of her property. On review, this court must uphold the trial
court's findings of fact unless the evidence preponderates otherwise. State v. Keith, 978 S.W.2d 861,
864 (Tenn. 1998). This court's review of the trial court's application of the law to the facts, however,
is de novo. Id.

Initially, the state argues that because the defendant failed to present the issue in a motion
for new trial, the ground is waived. The state also asserts that the issue does not rise to the level of
plain error. Generally, the failure to present an issue in a motion for new trial results in a waiver.
Rule 3(e) of the Tennessee Rules of Appellate Procedure provides that for appeals "in all cases tried
by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion
of evidence, jury instructions granted or refused, . . . or other ground upon which a new trial is
sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will
be treated as waived." Whether properly assigned or not, however, this court may consider plain
error upon the record under Rule 52(b) of the Tennessee Rules of Criminal Procedure. State v. Ogle,
666 S.W.2d 58 (Tenn. 1984).

Before an error may be so recognized, it must be "plain" and must affect a "substantial right"
of the accused. The word "plain" is synonymous with "clear" or equivalently "obvious." United
States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous. Plain
error is especially egregious error that strikes at the fairness, integrity, or public reputation of judicial
proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v.
Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined "substantial right" as
a right of "fundamental proportions in the indictment process, a right to the proof of every element
of the offense and . . . constitutional in nature." In that case, this court established five factors to be
applied in determining whether an error is plain:

(a) The record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused [must not have waived] the issue for tactical reasons; and
(e) consideration of the error must be "necessary to do substantial justice."

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Id. at 641-42. Our supreme court characterized the Adkisson test as a "clear and meaningful
standard" and emphasized that each of the five factors must be present before an error qualifies as
plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).

Here, the record clearly establishes that the defendant challenged the evidence in the trial
court, which determined that neither Article I, Section 7 of the Tennessee Constitution nor the Fourth
Amendment to the United States Constitution was applicable to the search. Because, however, our
research suggests that Ms. Wilkes-Myers and Ms. Sexton fit within the definition of "state actor"
and, therefore, were subject to constitutional limitations, the trial court's ruling appears to have
breached a clear and unequivocal rule of law and adversely affected a substantial right of the
defendant. There is no indication that the defendant waived the issue for tactical reasons.1 Finally,
it is our view that consideration of the suppression issue is "necessary to do substantial justice."
Because all factors appear to be present, this court chooses to address the question as plain error.

Under Article I, Section 7 of the Tennessee Constitution and the Fourth Amendment to the
United States Constitution, made applicable to the states by the Fourteenth Amendment, a
warrantless search or seizure is presumptively unreasonable and any evidence discovered thereby
is subject to suppression unless one of the narrowly defined exceptions applies. U.S. Const. amends.
IV, XIV; Tenn. Const. art. I, § 7; Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971); State v.
Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996). There is, however, no constitutional protection
against unreasonable searches and seizures by private individuals. Burdeau v. McDowell, 256 U.S.
465 (1921). It is only when an individual acts as an agent of the state that a constitutional violation
may be utilized to preclude the admission of evidence. Coolidge, 403 U.S. at 487.

In State v. Burroughs, our supreme court, citing United States v. Walther, 652 F.2d 789 (9th
Cir. 1981), recognized two factors as relevant to the determination of whether private conduct is
chargeable to the state in connection with an allegedly unreasonable search: (1) whether the
government has knowledge of and acquiesces in the search; and (2) the intent of the party performing
the search. 926 S.W.2d 243, 246 (Tenn. 1996). Describing this two-pronged analysis as the
"legitimate independent motivation" test, our supreme court in Burroughs determined that a private
individual who had conducted a warrantless search of a dormitory room was not a state agent. In
several of the federal cases cited with approval in Burroughs, it was held that so long as the private
party acts for a reason independent of the purpose of the state, there is no state agency and, in
consequence, no protection against unreasonable searches and seizures.

By the application of the Burroughs test to these circumstances, it is our view that the
conduct of Ms. Wilkes-Myers and Ms. Sexton in their initial search of the property is chargeable to
the state. In our view, Officer Warden of the Hickman County Sheriff's Department, who clearly had

1
Although the ground was not included in a motion for new trial, no motion for new trial was filed. In fact, the
record also demonstrates that the defendant did not file a timely notice of appeal. Counsel on appeal, who was not
involved in the trial, sought and received a waiver of the requirement. In granting the request, this court found that the
appeal sho uld be gran ted in the interest o f justice. See Tenn. R . App. P. 4 (a).

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knowledge of the initial search, acquiesced in its execution by accompanying the two women to the
property and lending the credibility and authority of law enforcement to the Humane Society. The
state argues that the deputy was present in this instance merely to provide protection to Ms. Wilkes-
Myers and Ms. Sexton. At the suppression hearing, Ms. Wilkes-Myers testified that Hickman
County Humane Society representatives "always call a deputy sheriff to accompany [them] because
a lot of times . . . isolated locations [are involved] and [they] just do that for [their] protection." The
record reflects, however, that the deputy's involvement extended beyond providing security to Ms.
Wilkes-Myers and Ms. Sexton. Officer Warden testified that he attempted to calm the defendant
after Ms. Sexton advised her of the nature of the investigation. He then informed the defendant that,
in his opinion, a dead puppy they had observed near their vehicles supplied the necessary probable
cause for the issuance of a search warrant. When the defendant indicated that she would allow an
inspection of her property so long as photographs were not made, the officer called for back-up
assistance at the scene. After inspecting the property, Officer Warden assisted Ms. Sexton, as she
obtained a search warrant, by signing an affidavit in support of its issuance. During this process, Ms.
Wilkes-Myers was left alone with the defendant and, by all appearances, she did not require any
protection from law enforcement.

Application of the second factor yields the same result. It is our view that Ms. Wilkes-Myers
and Ms. Sexton were performing a law enforcement function at the time of their initial search. In
the words of Ms. Sexton, she and Ms. Wilkes-Myers, as representatives of the Hickman County
Humane Society, "were there due to an anonymous complaint of animals being in poor conditions
and deplorable housing and filth and . . . to substantiate that complaint." Ms. Wilkes-Myers testified
that the Humane Society "go[es] by the State of Tennessee cruelty laws, that's what [the organization
tries] to enforce." Humane societies which are chartered by the state, such as the Hickman County
Humane Society, are specifically vested with the power to arrest and prosecute animal cruelty
offenders:

The agents of any society which is incorporated for the prevention of cruelty
to animals, upon being appointed thereto by the president of such society in any
county, may, within such county, make arrests, and bring before any court thereof
offenders found violating the provisions of this part with regard to non-livestock
animals.

Tenn. Code Ann. § 39-14-210(a) (emphasis added). "While county humane societies may engage
in certain activities that are not governmental in nature, the above statute[] demonstrate[s] that the
primary purpose of such organizations is law enforcement . . . ." Studer v. Seneca County Humane
Society, No. 13-99-59, 2000 WL 566738, at *3 (Ohio Ct. App. May 4, 2000) (holding that humane
society was political subdivision of Ohio for purposes of immunity statutes); see also Putnam County
Humane Society v. Woodward, 740 So.2d 1238, 1240 (Fla. Dist. Ct. App. 1999) (holding that Public
Records Act was applicable to humane society because "[w]here the [s]ociety ha[d] used its statutory
authority to investigate acts of animal abuse and . . . to seize animals, it ha[d] acted as an agent of
the state"). Here, there is no indication that either Ms. Wilkes-Myers or Ms. Sexton had a legitimate

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motivation to search the property independent of her affiliation with the Hickman County Humane
Society.

Having determined that Ms. Wilkes-Myers and Ms. Sexton qualified as state actors in
conducting the search, it is also our conclusion that the initial search of the property was
unreasonable. As the trial court also recognized, the state has failed to carry the burden of
establishing, by a preponderance of the evidence, that the search fell within one of the recognized
exceptions to the warrant requirement. See Coolidge, 403 U.S. at 454-55. Moreover, the trial court,
having seen and heard the testimony of the witnesses and having reviewed the evidence firsthand,
determined that the defendant did not consent to the search. This court is obliged to uphold the trial
court's findings of fact unless the evidence preponderates otherwise. Keith, 978 S.W.2d at 864; State
v. McCrary, 45 S.W.3d 36, 41 (Tenn. Crim. App. 2000). It does not do so in this case. Because the
initial search was unreasonable and the defendant did not consent thereto, the evidence which led
to each of the convictions must be suppressed.

II
Next, the defendant argues that the evidence, even if it had been properly admitted, was
insufficient to support her convictions. She contends that there is no evidence of the appropriate
standard of care and no proof that any deviation from that standard caused or contributed to the
conditions of the animals for which the state obtained convictions.

On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.
298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

Animal cruelty is committed when a person intentionally or knowingly

(1) [t]ortures, maims or grossly overworks an animal;
(2) [f]ails unreasonably to provide necessary food, water, care or shelter for
an animal in the person's custody;
(3) [a]bandons unreasonably an animal in the person's custody;

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 (4) [t]ransports or confines an animal in a cruel manner; or
(5) [i]nflicts burns, cuts, lacerations, or other injuries or pain, by any method,
including blistering compounds, to the legs or hooves of horses in order to make
them sore for any purpose including, but not limited to, competition in horse shows
and similar events.

Tenn. Code Ann. § 39-14-202(a).

Here, the jury convicted the defendant on counts 4, 11, and 26 of the indictment. Counts four
and 26 charged the defendant with cruelty by unreasonable failure "to provide necessary food, water,
care or shelter" to a female Chihuahua and a female Maltese, respectively. At trial, Cindy Wasden,
a Hickman County Human Society member, testified that she took possession of the Chihuahua on
December 21. When she removed the animal from the two-by-four-foot cage in which it was being
transported with 14 to 16 other dogs, she discovered that its back legs were paralyzed. She noted
that the dog was thin and covered with sores. It was euthanized at a veterinarian's recommendation.
With regard to the Maltese, Ms. Wasden testified that the dog was thin, toothless, covered in mud
and feces, and had an obvious cough. The Maltese was also euthanized. The defendant does not
deny that the dogs were in her custody and care. On these facts, a jury could have properly found
that the defendant failed to provide the necessary care for the Chihuahua. Even though the defendant
was not shown to have caused the dog's paralysis, the dog had a number of untreated open sores on
its body. A jury could also have properly found that the Maltese, which was living in its own
excrement and obviously ill, was not provided proper care or shelter.

Count 11 of the indictment charged the defendant with animal cruelty by the "torture and
maim[ing]" of a female toy fox terrier. Ms. Wasden testified that when she removed the terrier from
its cage, she observed that it was unable to stand. One of the dog's front legs was twisted and its
back leg was mangled and bleeding. Additionally, there was blood and pus coming from the
animal's rectum. Ultimately, the terrier was also euthanized. For purposes of animal offenses,
"torture" is defined as "every act, omission, or neglect whereby unreasonable physical pain,
suffering, or death is caused or permitted." Tenn. Code Ann. § 39-14-201(4). While there was no
evidence of what caused the terrier's injuries, it was within the jury's province to infer from the
circumstances that the defendant's neglect of those injuries resulted in unreasonable pain and
suffering to the terrier. In summary, had there been a valid search, the evidence would have been
sufficient to support each of the three convictions.

III
The defendant next asserts that the trial court erred by imposing the maximum term for each
conviction, ordering consecutive sentences, and prohibiting her from owning caged animals for five
years.

In misdemeanor sentencing, trial courts are required to provide the defendant with a
reasonable opportunity to be heard as to the length and manner of the sentence. Tenn. Code Ann.
§ 40-35-302(a). The sentence must be specific and consistent with the purposes of the Criminal

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Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-302(a). Not greater than 75 percent of
the sentence should be fixed for service by a misdemeanor offender; however, a DUI offender may
be required to serve the full one hundred percent of his sentence. Tenn. Code Ann. § 40-35-302(d);
Palmer v. State, 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the percentage of the
sentence to be served, the court must consider enhancement and mitigating factors as well as the
legislative purposes and principles related to sentencing. Tenn. Code Ann. § 40-35-302(d).

Upon service of the required percentage of the sentence, the administrative agency governing
the rehabilitative program determines which among the lawful programs available is appropriate.
Id. The trial court retains the authority to place the defendant on probation either immediately or
after a term of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e). The
legislature has encouraged courts to consider public or private agencies for probation supervision
prior to directing supervision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f).
The statutory scheme is designed to provide the trial court with continuing jurisdiction in the
misdemeanor case and a wide latitude of flexibility. The misdemeanant, unlike the felon, is not
entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn.
Crim. App. 1994). Appellate review of misdemeanor sentencing is de novo with a presumption of
correctness. See State v. Troutman, 979 S.W.2d 271 (Tenn. 1998).

Here, the trial court observed that the "sentence imposed should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed." Tenn. Code Ann. § 40-35-
103(4). In an effort to protect any animals in the defendant's custody, the trial court ruled as follows:

I do think that she is guilty of animal cruelty in these counts. . . . I also think
that she at least knowingly treated the animals cruelly in that she knew that she wasn't
able to take care of them and kept having puppies and it got out of hand. But she
knew that and, of course, knowingly is part of this criminal statute. And she was
making a living at that, so I think consecutive sentencing is appropriate. I will
sentence her to eleven months and twenty-nine days in the Hickman County
Workhouse in each case and fine her in the amount of one thousand dollars. Those
sentences to run consecutively one with another.

I will suspend the sentences and place her on eleven months and twenty-nine
days probation in each case and order that as a condition of probation . . . for a period
of five years that she have no dogs or any animals that are ordinarily kept in cages
unless she gives a written consent to the Hickman County Humane Society to search
her premises outside the actual residence where she lives at any time, and then she
allows them to do it.

Animal cruelty, a Class A misdemeanor, is punishable by "not greater than eleven (11)
months twenty-nine days or a fine not to exceed two thousand five hundred dollars ($2,500), or
both." Tenn. Code Ann. §§ 39-14-202(f); 40-35-112(e)(1). Upon conviction, the defense agreed to
proceed to sentencing without a presentence report or a separate sentencing hearing. When invited

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to be heard on the issue, defense counsel stated that "everything that [he] would tell the [c]ourt came
out on direct examination." In this appeal, the defendant does not argue the application of any
particular mitigating factors. Rather, she argues that "[i]mposition of the most sever[e] sentence .
. . is simply not justified in this case." As indicated, however, there is no presumptive minimum in
misdemeanor sentencing. Moreover, it is our view that the sentences of 11 months, 29 days, would
have been warranted by the circumstances of the offenses. The evidence, photographs and
otherwise, established that the defendant, a commercial dog breeder, maintained over 250 animals
in poor conditions. By all appearances, their level of care was pitiful. After the Hickman County
Humane Society discovered the improprieties, the defendant hid the majority of the dogs. Even
though there were only three convictions, the state clearly established severe neglect. See State v.
Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (holding that sentencing court may consider facts
underlying an offense for which the defendant has been acquitted where the facts have been
established by a preponderance of the evidence). That the trial court suspended all three of the
defendant's sentences and ordered total probation exhibited leniency. Had the convictions been
upheld, it would be our determination that the lengths of the sentences were warranted.

The defendant also questions the propriety of consecutive sentencing. Prior to the enactment
of the Criminal Sentencing Reform Act of 1989, the limited classifications for the imposition of
consecutive sentences were set out in Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case
our supreme court ruled that aggravating circumstances must be present before placement in any one
of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the court established
an additional category for those defendants convicted of two or more statutory offenses involving
sexual abuse of minors. There were, however, additional words of caution:

[C]onsecutive sentences should not routinely be imposed . . . and . . . the aggregate
maximum of consecutive terms must be reasonably related to the severity of the
offenses involved.

Id. at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code
Ann. § 40-35-115, Sentencing Commission Comments. The 1989 Act is, in essence, the codification
of the holdings in Gray and Taylor; consecutive sentences may be imposed in the discretion of the
trial court only upon a determination that one or more of the following criteria2 exist:

(1) The defendant is a professional criminal who has knowingly devoted
[himself] to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by
a competent psychiatrist who concludes as a result of an investigation prior to

2
The first four criteria are fo und in Gray. A fifth category in Gray, based on a specific number of prior felony
convictions, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-115,
Sentencing Com mission Comme nts.

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 sentencing that the defendant's criminal conduct has been characterized by a pattern
of repetitive or compulsive behavior with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which the
risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and victim or
victims, the time span of defendant's undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and mental damage to the
victim or victims;
(6) The defendant is sentenced for an offense committed while on probation;
(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consecutive in nature, must be "justly deserved in relation
to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that
deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane, 3 S.W.3d 456
(Tenn. 1999).

Here, the trial court ordered consecutive sentencing because the defendant "was making a
living" as a commercial breeder notwithstanding her failure to properly care for the large number of
animals in her possession. As such, the trial court apparently relied upon Tennessee Code Annotated
section 40-35-115(b)(1), that the defendant is a professional criminal who has knowingly devoted
her life to criminal acts as a major source of livelihood. In our view, however, that factor is
inapplicable. Although the defendant committed criminal acts in connection with her livelihood,
breeding and selling dogs, the business, properly operated, is not inherently criminal. There are no
other applicable criteria that would support consecutive sentencing.

Finally, the defendant complains that the trial court erred by prohibiting her from keeping
caged animals for a period of five years. Such a requirement would have been an appropriate
condition for the full term of the defendant's probation. See Tenn. Code Ann. § 40-35-303(d)(9).
Trial courts, however, may only suspend a sentence "for a period of time . . . up to and including the
statutory maximum time for the class of the conviction offense." Tenn. Code Ann. § 40-35-303(c).
The state concedes error by the trial court in extending the term to five years. This court must agree.
No conditions of probation, such as the prohibition against dog ownership, could have extended
beyond the term of the sentence.

IV
As her final issue, the defendant argues that the trial court erred by revoking her probation
because her sentence was automatically stayed pending the outcome of her appeal. See State v.
Lyons, 29 S.W.3d 48 (Tenn. Crim. App. 2000). Citing State v. Conner, 919 S.W.2d 48 (Tenn. Crim.

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App. 1995), the state responds that a trial court always retains jurisdiction over a probationer, even
when the sentence is not in effect.

The jurisdiction of this court "attaches upon the filing of the notice of appeal and, therefore,
the trial court loses jurisdiction." State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); see
also State v. Peak, 823 S.W.2d 228, 229 (Tenn. Crim. App. 1991). Although the defendant filed her
notice of appeal nearly two months late, this court granted the defendant's motion to waive timely
filing on May 24, 2000, concluding that the notice was considered timely filed as of May 8. At that
time, almost two months before the filing of the probation revocation warrant on July 8, 2000, the
trial court lost jurisdiction.

In our view, State v. Conner is distinguishable from this case. In Conner, the defendant pled
guilty to driving under the influence, fourth offense, and driving on a revoked license. He received
an effective sentence of 11 months, 29 days, with all but 150 days suspended. The sentence was
ordered to be served consecutively to a prior felony sentence. Later, the district attorney general filed
a petition to revoke probation, asserting that the defendant had failed to return from a furlough and
had also received another driving under the influence conviction. The defendant argued, among
other things, that the trial court was without authority to revoke his probation because his sentence
had not actually commenced. This court disagreed, holding that a trial court may revoke a term of
probation based on acts committed after sentencing, but before the commencement of a probationary
term. Id. at 51. There is one critical procedural difference between Conner and this case: At the time
of the revocation petition in Conner, no notice of appeal had been filed and the judgment had
become final. Here, of course, a notice of appeal had been filed and the trial court's jurisdiction had
ended prior to the July 8 probation revocation warrant.

Our conclusion does not turn on the fact that the sentence of the defendant was stayed
pending her appeal. Rather, it is a matter of jurisdiction. The state argues that such a holding will
give probationers "carte blanche to violate the law during a period when the sentence is not in
effect." The hands of a trial court, however, are not tied under these circumstances. Under
Tennessee Code Annotated section 40-35-311(a) and the rule in Conner, a trial court could
appropriately consider a probation revocation warrant based on a criminal offense committed during
appeal after completion of the appeal and return of jurisdiction to the trial court.

Because the evidence resulting from the initial search of the defendant's property should have
been suppressed, the convictions are reversed and the cause remanded to the trial court.

___________________________________
GARY R. WADE, PRESIDING JUDGE

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