Duncan v. State

• Decision Date: 28 September 2012
• Docket Number: No. 82A01–1201–CR–22.,82A01–1201–CR–22.
• Citation: 975 N.E.2d 838
• Parties: Steven DUNCAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

975 N.E.2d 838

Steven DUNCAN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 82A01–1201–CR–22.

Court of Appeals of Indiana.

Sept. 28, 2012.

Ivan A. Arnaez, Arnaez Law Office, Evansville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Justin F. Robel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

Following a bench trial, Steven Duncan was convicted of six counts of cruelty to an animal, all Class A misdemeanors. He raises three issues for our review: 1) Whether he knowingly waived his right to a jury trial; 2) Whether Indiana's animal cruelty statute is unconstitutionally vague; and 3) Whether there was sufficient evidence to overcome a defense of necessity.

Concluding that Duncan did not knowingly waive his right to a jury trial because the trial court did not fully advise him of his rights and obligations, that the statute is not vague as applied to him, and that there was sufficient evidence to overcome a defense of necessity, we affirm in part, reverse in part, and remand.

Facts and Procedural History

In March of 2010, Superintendent Monica Freeman of Evansville Animal Care and Control went to a property to investigate a complaint. At the property she found two horses in a paddock with no food or water. There were two barns on the property, and in each barn there were five horses in stalls that were filled with manure and urine and lacked any apparent food or water. Six more horses were in a pasture with access to hay and a ditch with water; one of those horses was a “mare with a halter grown into her face.” Transcript at 291. As Superintendent Freeman was inspecting the property, Duncan arrived and admitted to owning and being responsible for the animals. When asked why the animals were in such poor condition, Duncan offered no explanation. A veterinarian called to the property found the horses to be living in deplorable conditions. All of the horses were removed and taken to the county fairgrounds, and Duncan was arrested and charged with thirteen counts of animal cruelty under Indiana Code section 35–46–3–7(a).

At an initial hearing, Duncan appeared pro se, and in the advisement of rights the judge noted Duncan's right to a jury trial, but did not mention the requirement to timely request a jury trial if one was desired, or the consequences of failing to do so.¹ Duncan was represented by counsel by the time of a probable cause hearing, and well before a trial date was set. There is nothing in the record provided to suggest that Duncan was later informed of the requirements for requesting a jury trial or the consequences of failing to do so. There is also nothing in the record to indicate that he ever requested a jury trial, timely or otherwise.

Following a bench trial, Duncan was found guilty of six counts of neglecting a vertebrate animal.² The conditions of the horses for which he was convicted of neglect are as follows—as explained by veterinarians who examined them, and identified by the fairground stall number in which they were placed: ³

Horse in stall six: A nineteen year old mare with rain scald over her back, ⁴ fecal matted hair, and swollen and inflamed legs. Based on her progression the rain scald would have been the result of weeks or a month in damp conditions. The swollen and inflamed legs could have been caused by her matted and dirty state. Her body score was two, indicating malnourishment. ⁵

Horse in stall eight: A twenty-five year old mare with a body score of two to three, suffering from rain scald. She had injuries that appeared to be caused by a halter that was too tight, resulting in rubbing or pressure necrosis and leaving her with open wounds under the halter.

Horse in stall thirty-one: A two year old colt with a body score of 1.5, suffering from abdominal pain.

Two horses in stall thirty-three: Two yearling fillies, both of whom had to be euthanized on a veterinarian's recommendation. Both suffered from epiphysitis, a bone growth plate inflammation that can be due to heredity, physical trauma, or poor nutrition. The epiphysitis resulted in pain and difficulty walking. Both suffered from rain scald. They both had body scores of one and were emaciated. At least one of them had metabolic bone disease, primarily caused by lack of nutrition. The bone disease made moving very painful, including moving the jaw while trying to eat.

Horse in stall thirty-six: A yearling who had severe rain scald with open wounds. He had pitting edema and a swollen head as a result of anemia. He had a body score of one, suffered from colic and resulting pain, and eventually had to be euthanized.

Additional facts will be supplied as necessary in the discussion.

Discussion and Decision

I. Waiver of Jury Trial in Misdemeanor Cases Under Rule 22

A. Standard of Review

The right of an accused to have a trial by jury is guaranteed by the Indiana and United States Constitutions. U.S. Const. amend. VI; Ind. Const. art. 1, § 13; Belazi v. State, 525 N.E.2d 351, 351 (Ind.Ct.App.1988), trans. denied. In criminal cases, the procedure for asserting the right is codified in Indiana Code section 35–37–1–2 (“The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. All other trials must be by jury.”). While the Constitution does not differentiate between felonies and misdemeanors, in Indiana the procedure for asserting the right to a jury trial in misdemeanor cases is controlled by Indiana Criminal Rule 22. Rule 22 states, in relevant part:

A defendant charged with a misdemeanor may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.

While a defendant charged with a misdemeanor can therefore waive his right to a jury trial by inaction, the waiver must nonetheless be knowing, voluntary, and intelligent. Eldridge v. State, 627 N.E.2d 844, 846–47 (Ind.Ct.App.1994), trans. denied; see also Brown v. State, 495 N.E.2d 178, 179 (Ind.1986). On appeal, we consider the entire record to determine whether the defendant has made a voluntary, knowing, and intelligent waiver. Holtz v. State, 858 N.E.2d 1059, 1061 (Ind.Ct.App.2006), trans. denied.

B. Waiver of Jury Trial

The right to trial by jury is a fundamental right, and while the manner of preserving that right is altered by Criminal Rule 22, it is not diminished. Pryor v. State, 973 N.E.2d 629, 632 (Ind.Ct.App.2012); Stevens v. State, 689 N.E.2d 487, 489 (Ind.Ct.App.1997). There are three elements to a valid waiver of the right to a jury trial—knowing, voluntary, and intelligent. We have previously distinguished between these elements: “A voluntary waiver occurs if the conduct constituting the waiver is the product of a free will; a knowing waiver is the product of an informed will; an intelligent waiver is the product of a will that has the capacity to understand....” Eldridge, 627 N.E.2d at 846. Additionally, the waiver needs to be personal. Id. In a misdemeanor case, the personal nature of the waiver can be inferred where the defendant fails to assert the right to a jury trial and there is evidence that the waiver is knowing, voluntary, and intelligent. Id. In the present case, Duncan contends that his waiver was not knowing because he was not fully informed. We agree.

The State concedes that Duncan was not advised of the consequences of failing to ask for a jury trial. We note that he was also not advised of the requirement of a written demand for a jury trial ten days before his scheduled trial date. The State contends however that we can infer that Duncan was informed because he was represented and thus “counsel presumably discussed a jury trial.” Appellee's Br. at 12. Because the right to a jury trial is a fundamental right, we cannot assume from a silent record that Duncan was informed by his counsel. In order to establish a valid waiver in a misdemeanor case, the record is sufficient if

1) it does not contain a request for a trial by jury; 2) it evidences that the defendant was fully advised of the right to a trial by jury and of the consequences for failing to timely request the right; and 3) it reflects that the defendant was able to understand the advice.

Eldridge, 627 N.E.2d at 848. A defendant may be advised of his rights in multiple ways. The court can orally inform him of his rights, Poore v. State, 681 N.E.2d 204, 208 (Ind.1997) (noting also that “[w]hile it is advantageous for a trial judge to engage a defendant in colloquy concerning the consequences of waiving trial by jury,” it is not required); the defendant can be given a written advisement, id;Jackson v. State, 644 N.E.2d 595 (Ind.Ct.App.1994); his counsel, on the record, can inform him of his rights and question his understanding of them, Reynolds v. State, 703 N.E.2d 701 (Ind.Ct.App.1999); or the defendant can sign a written waiver and file it in open court, Poore, 681 N.E.2d 204.

Here, the record lacks any indication that Duncan was fully advised of the consequences of failing to timely request a jury trial. Our case law further confirms that even where a defendant is represented, having counsel is not itself a sufficient substitute for the defendant being expressly advised of his rights. Bex v. State, 952 N.E.2d 347, 349 (Ind.Ct.App.2011) (noting as an initial matter that a represented defendant was not fully informed), trans. denied; Hanna–Womack v. State, 623 N.E.2d 439, 440 (Ind.Ct.App.1993) (noting that the defendant was not fully informed by the court and that there was also no indication that she was informed by her counsel); see also Belazi, 525 N.E.2d at...