Boss v. State
| Decision Date | 30 March 2012 |
| Docket Number | No. 49A05–1106–CR–320.,49A05–1106–CR–320. |
| Citation | 964 N.E.2d 931 |
| Parties | Carolyn BOSS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Suzy St. John, Marion County Public Defender, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Carolyn Boss appeals her convictions and sentence following a bench trial for six counts of class A misdemeanor failure to restrain a dog 1 and six counts of class B misdemeanor harboring a non-immunized dog.2
We affirm in part, reverse in part, and remand.
1. Whether there is sufficient evidence to support Boss's convictions.
2. Whether Boss's convictions constitute double jeopardy.
3. Whether Boss's sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
4. Whether Boss's one-year consecutive sentences are unconstitutional.
On November 3, 2008, three dogs surrounded Carole Bales as she walked in an alley near her home. Bales recognized the dogs as those kept by Boss, who lived across the street from Bales.
One of the dogs clamped down on Bales's arm and began shaking her by the arm before pulling her down to the ground. Another dog bit Bales's leg and “started shaking” it while the third dog “started nipping [her] up and down [her] body.” (Tr. 12). The dogs then “started dragging [Bales] down the alley.” (Tr. 12).
Thomas Wimberly responded to Bales's cries for help. When he got to the alley, he saw the dogs “gnawing on” Bales. (Tr. 28). As Wimberly attempted to get the dogs away from Bales, two of the dogs bit his arms and knocked him to the ground. A passerby alerted Boss to the attack. Boss called the dogs off of Bales and Wimberly and took them back to her yard.
Deborah Dobbins, an animal control officer with Indianapolis Animal Control & Care, responded to the scene. She observed two of the dogs in a fenced area at the side of Boss's house. A forty-two-inch-high chain-link fence surrounded the area. Dobbins, however, observed that the fence was “dilapidated,” with gaps at the bottom of the fence under which a dog could crawl. (Tr. 58). The third dog was loosely secured by its collar to a tree in the unfenced backyard. Dobbins observed that the collar was “way too loose for that dog” because it “slipped right off the dog's head....” (Tr. 59). Dobbins observed blood on all three dogs.
Boss informed Dobbins that the dogs belonged to her son and that she was caring for them because he was incarcerated. Dobbins did not find any rabies tags on the dogs, and Boss could not provide any vaccination records. Boss signed a Surrender of Owner's Animal, whereby she certified that she was the owner of the dogs and voluntarily surrendering the dogs to Animal Control & Care.
The dog bites caused extensive injuries to Bales, including permanent damage to the nerves in her arm. Bales's injuries required a two-week stay in the hospital followed by extensive physical therapy. Bales also suffered several bite wounds to her legs as well as scratches to her torso. Wimberly's injuries to his arm required a hospital stay of six weeks, followed by several weeks of physical therapy. Wimberly also suffered permanent damage to his arm. In addition, Wimberly suffered several less severe bites to his arms.
On December 8, 2008, the State charged Boss with six counts of class A misdemeanor failure to restrain a dog and six counts of class B misdemeanor harboring a non-immunized dog. The trial court held a bench trial on June 22, 2011, after which it found Boss guilty as charged.
The trial court held a sentencing hearing on June 24, 2011. The trial court found Boss's lack of criminal history and that she voluntarily surrendered the dogs to be mitigating circumstances. The trial court found the nature and circumstances of the crime to be an aggravating circumstance. Finding that the aggravator outweighed the mitigators, the trial court sentenced Boss to concurrent sentences of one year on Counts 1, 2, 3, 5, and 6. The trial court further sentenced Boss to one year on Count 4, to be served consecutive to the sentence on Count 1, to be served in county jail. The trial court then sentenced Boss to concurrent sentences of 180 days on the remaining counts, with 168 days on each count suspended to probation. Thus, Boss received an aggregate sentence of two years, followed by 168 days of probation.
Boss asserts that the evidence is insufficient to support her convictions for failing to restrain her dogs and harboring non-immunized dogs.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146–47 (Ind.2007) (quotations and citations omitted).
Boss argues that the evidence was insufficient to establish that she failed to take reasonable steps to restrain her dogs. Indiana Code section 15–20–1–4 provides that the owner of a dog commits a class C misdemeanor if:
(1) the owner recklessly, knowingly, or intentionally fails to take reasonable steps to restrain the dog;
(2) the dog enters property other than the property of the dog's owner; and
(3) as the result of the owner's failure to restrain the dog, the dog bites or attacks another person without provocation, resulting in bodily injury to the other person.
The offense is a class A misdemeanor if it results in serious bodily injury to a person.
“[I]f a statute is ambiguous, we seek to ascertain and give effect to the legislature's intent.” “The best evidence of legislative intent is the language of the statute itself, and all words must be given their plain and ordinary meaning unless otherwise indicated by statute.” “[P]enal statutes must be strictly construed against the State, but a statute should not be overly narrowed so as to exclude cases fairly covered by it and should be interpreted so as to give efficient operation to the expressed intent of the legislature.” “Also, we assume that the language in a statute was used intentionally and that every word should be given effect and meaning.” “We seek to give a statute practical application by construing it in a way favoring public convenience and avoiding absurdity, hardship, and injustice.”
Buchanan v. State, 956 N.E.2d 124, 128–29 (Ind.Ct.App.2011) (internal citations omitted).
“Reasonable” is defined as “not extreme or excessive[.]” See http:// www. merriam- webster. com/ dictionary/ reasonable (last visited Feb. 23, 2011). In Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 987 (Ind.Ct.App.1999), trans. denied, this court construed the meaning of “restraint,” as used in a city ordinance requiring owners to keep their dogs restrained. Looking at the plain and ordinary meaning, the court determined the terms “restraint” and “restrained” import active control and prevention of conduct rather than mere containment. See id. (). We find the use of the term “restrain” in Indiana Code section 15–20–1–4 to be analogous to that addressed in Plesha. Accordingly, we interpret Indiana Code section 15–20–1–4 as requiring an owner of a dog to take practical and sensible steps to control his or her dog to prevent the dog from going onto the property of another.
Here, the evidence shows that Boss kept two of the dogs in a fenced area. Dobbins, however, testified that the fence had obvious gaps through which the dogs could escape. The evidence further shows that Boss kept the third dog in her unfenced backyard, with only a loose collar through which his head easily slipped. Given the evidence, the trial court could reasonably infer that Boss failed to take reasonable steps to restrain the dogs.
Boss further asserts that the evidence was insufficient to establish that she harbored a non-immunized dog. Boss maintains that it was the State's burden to prove that the dogs were not immunized. She also maintains that the State failed to present evidence that she knew the dogs were not immunized.
Indiana Code section 35–46–3–1 provides that a “person who knowingly or intentionally harbors a dog that is over the age of six (6) months and not immunized against rabies commits harboring a non-immunized dog.” The offense is a class B misdemeanor “if the dog causes bodily injury by biting a person.” I.C. § 35–46–3–1. Indiana Administrative Code section 1–5–2 requires owners to vaccinate their dogs against rabies. Pursuant to Indiana Administrative Code section 1–5–1, upon administering a rabies vaccination, the veterinarian must provide the owner with a completed rabies vaccination certificate and a rabies vaccination identification tag, both of which the owner is required to keep.
In this case, the State presented evidence that Boss could provide neither tags nor certificates of...
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