Davis v. State, 45A03-0808-CR-407.

Decision Date11 June 2009
Docket NumberNo. 45A03-0808-CR-407.,45A03-0808-CR-407.
PartiesCarlton DAVIS, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Kristin A. Mulholland, Appellate Public Defender, Crown Point, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant Carlton Davis, Jr. appeals his convictions for Promoting or Staging an Animal Fighting Contest, a Class D felony,1 Purchasing or Possessing an Animal for an Animal Fighting Contest, a Class A misdemeanor,2 and Possession of Animal Fighting Paraphernalia, a Class B misdemeanor.3 We affirm.

Issues

Davis raises two issues on appeal:

1. Whether the trial court erred in admitting evidence that was obtained in violation of his Fourth Amendment right against illegal searches and seizures; and

2. Whether the trial court erred by admitting evidence in violation of Indiana Evidence Rule 404(b).

Facts and Procedural History4

On Memorial Day weekend in 2006, Glenda Majeski and her husband, neighbors of Davis, had not seen anyone at Davis's house that weekend but had observed dogs on Davis's property barking and carrying their empty food pans. The temperatures had reached between eighty and ninety degrees during the weekend. They also noted a terrible stench that seemed to be coming from the same property. On Memorial Day, the Majeskis finally decided that one of them would go onto the property and provide water for the dogs. When the husband returned, he suggested that his wife call 9-1-1 due to the condition of the dogs. After Glenda called 9-1-1, she went onto the property and observed thirteen dogs that had many scars, appeared emaciated, and were chained to blue barrels, forcing them to live in their own filth. The dogs were also without food or water. The Majeskis then took dog food and water from their home and provided it to the dogs on Davis's property.

Deputy Vernon Joiner from the Lake County Sheriff's Department responded to the 9-1-1 call. Upon arriving at Davis's home, Deputy Joiner spoke with Mr. Majeski and then proceeded onto the property. Deputy Denise Szany also responded and accompanied Deputy Joiner in walking on the property. First, Deputy Joiner noticed a foul odor that could be detected on the street. As he entered the property, he found a dog, near a red shed, which appeared to be malnourished. The door to the red shed was open, and Deputy Joiner observed a treadmill and a dog collar, bolted to the floor. He did not know the significance of the items in the red shed. The source of the foul smell was later determined to be the carcass of an animal that was in a plastic bag in the bed of a pickup on the property. When Deputy Joiner found the bag, there was a split in the bag through which he observed a rib cage.

From the area near the truck, Deputy Joiner could hear whimpering and crying of dogs. He followed the sounds to find six dogs, which appeared to be malnourished, chained to posts. There was enough distance between the posts to keep the dogs out of each other's reach. Deputy Joiner found another group of dogs on the property in similar condition. He noted that two of the dogs had markings or injuries on their faces. After observing the condition of the dogs, Deputy Joiner contacted his supervisor, who contacted Detective Michelle Weaver. Deputy Joiner also attempted to contact Davis, the owner of the property, but was unsuccessful. Deputy Joiner's shift ended at 2:00 p.m. that day, and he left the property in the care of officers on the next shift.

After speaking with Deputy Joiner and his supervisor between noon and one o'clock that day regarding the circumstances at Davis's home, Detective Weaver, the Lake County Sheriff's investigator for animal cruelty cases, went to the scene to assess the situation. Upon arriving, Detective Weaver spoke with Deputy Szany, who had been waiting in her patrol car. Then Detective Weaver interviewed some of the neighbors. After concluding the interviews, Detective Weaver then walked on the property to observe the condition of the dogs and the items in the red shed. She noted a treadmill, breeding stand, and a device with alligator clips in the red shed. Detective Weaver did not go into or look into the house, metal garage or white pole barn on the property. After viewing the dogs on the property, she concluded that most of the dogs were emaciated and some of the dogs had fresh injuries. Based on her observations, Detective Weaver drafted a search warrant for approval supported by a probable cause affidavit. The search warrant included all of the buildings located on the property to be searched for:

1. Any equipment or items possibly used in the breeding, training, transporting, feeding, caring for, euthanizing or fighting of dogs or roosters

2. Any animals, dead or alive, located on the property

3. Any items documenting the use of animals in fighting contests that have taken place on the property or elsewhere

4. Any photographs or video tapes of the premises

Appendix at 95. The warrant was approved and then executed by Detective Weaver.

On June 12, 2006, the State charged Davis with eight counts of Promoting Animal Fighting Contests,5 a Class D felony, fifteen counts of Cruelty to an Animal,6 a Class B misdemeanor, Using an Animal in a Fighting Contest,7 a Class D felony, Purchasing or Possessing an Animal for an Animal Fighting Contest,8 a Class A misdemeanor, and Possession of Animal Fighting Paraphernalia,9 as a Class B misdemeanor. After a jury trial, Davis was acquitted of Using an Animal in a Fighting Contest, and three counts of Cruelty to an Animal, but was found guilty of the remaining charges. The trial court sentenced Davis to an aggregate of six years imprisonment, suspending two years to probation, and ordering two years served at the Department of Correction and the remaining two years in community corrections.

Davis now appeals.

Discussion and Decision
Standard of Review

Davis raises two issues regarding the admission of evidence. Admission of evidence is within the sound discretion of the trial court. Amos v. State, 896 N.E.2d 1163, 1167 (Ind.Ct.App.2008), trans. denied. We will only reverse a decision of the trial court to admit evidence if there is an abuse of such discretion. Id. An abuse of discretion occurs if the trial court's decision is against the logic and effect of the facts and circumstances before the court. Id. at 1168.

I. Admission of Evidence From Search

Davis contends that the trial court abused its discretion in admitting evidence seized as a result of the execution of the search warrant, arguing that: Detective Weaver had no reason to be on his property when she viewed it to obtain evidence to seek the search warrant; there were discrepancies between the testimony of neighbors and their statements listed in the affidavit for the search warrant; and the language of the search warrant was vague and overbroad. Specifically, Davis argues that these deficiencies made the search warrant, permitting the search and seizure of his property, a violation of his right against unreasonable searches and seizures as provided by the federal Constitution.10 Accordingly, he claims that the trial court was obligated to exclude the allegedly tainted evidence recovered during the search pursuant to the exclusionary rule.

The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment protects citizens against unreasonable searches and seizures of persons and property by requiring a warrant based on probable cause. Moore v. State, 827 N.E.2d 631, 637 (Ind. Ct.App.2005), trans. denied. "Probable cause exists when an officer has knowledge of facts and circumstances that would lead a reasonably prudent person to believe that a crime has been committed." Id. The decision to issue the warrant should be based on the facts contained in the affidavit and the rational and reasonable inferences drawn therefrom. Redden v. State, 850 N.E.2d 451, 461 (Ind.Ct.App. 2006), trans. denied.

When reviewing the validity of a search warrant, we focus on whether a "substantial basis" existed for a warrant authorizing the search or seizure. Id. Doubtful cases are resolved in favor of upholding the warrant. Id. In making this determination, we focus on whether the reasonable inferences drawn from the totality of the evidence support the determination. Id. While our standard of review in this situation is de novo, we conduct our review with significant deference to the warrant judge's determination. Id.

A. Warrantless Re-entry of Curtilage

One argument that Davis raises as to the invalidity of the search warrant is that the affidavit submitted to obtain it was based on information that Detective Weaver obtained from illegally viewing his property. He also makes a passing argument that the officers who did the welfare check went beyond the area open to the public. The State counters that the initial warrantless searches were valid because there were exigent circumstances due to the welfare of the dogs on the property.

"It is axiomatic that warrants, both search and arrest, are required unless probable cause exists along with exigent circumstances rendering it impractical to seek a warrant." Jones v. State, 409 N.E.2d 1254, 1257 (Ind.Ct.App.1980). Exigent circumstances may include danger to law enforcement officers or the risk of loss or destruction of evidence. See Zimmerman v. State, 469 N.E.2d 11, 16 (Ind. Ct.App.1984). While Indiana courts have not ruled on whether animal cruelty...

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