Fuller v. State

• Decision Date: 13 December 1996
• Docket Number: No. 71A03-9511-CR-394,71A03-9511-CR-394
• Parties: Willie FULLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 576

674 N.E.2d 576

Willie FULLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A03-9511-CR-394.

Court of Appeals of Indiana.

Dec. 13, 1996.

Julie P. Verheye, Mishawaka, for Appellant-Defendant.

Pamela Carter, Attorney General of Indiana and Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

STATON, Judge

A jury convicted Willie Fuller ("Fuller") of one count of promoting or staging an animal fighting contest¹ and one count of using an animal in a fighting contest.² Fuller raises four issues for our review which we restate as:

I. Whether the trial court erred by admitting the testimonial stipulation concerning Officer Lawson's testimony.

II. Whether the trial court erred in admitting evidence of a wounded dog and several dead dogs found on Fuller's property under Ind. Evidence Rule 404(b).

III. Whether the evidence is sufficient to sustain Fuller's convictions.

IV. Whether Fuller's convictions violate double jeopardy.

We affirm.

The facts most favorable to the verdict reveal that on March 14, 1994, police officers went to Fuller's residence in response to a report of animal fighting. When they arrived, they encountered Fuller outside the house. In the rear of the house were two men, Miller and Fleming, holding pit bulls by the legs within five feet of each other. Fleming was living with Fuller at the time. The dogs had open, bleeding wounds. Officers subsequently discovered areas on Fuller's property with blood stains and discovered several dead dogs on or near Fuller's property. Other facts are provided as needed.

I. Testimonial Stipulation

Fuller argues the court erred when it admitted a testimonial stipulation entered into between his attorney and the prosecution regarding the testimony of Officer Lawson. Fuller states that he was not given the opportunity to review the stipulation until the day of trial, and requiring him to proceed to trial with the stipulation violated his Sixth Amendment right to confront and cross examine witnesses against him.

The facts reveal that at a pretrial hearing, the State moved for a continuance since one of its witnesses, Officer Lawson, would not be present to testify. Fuller was not present at the hearing. Fuller's attorney objected to the continuance, but agreed to the use of stipulated testimony of Officer Lawson. Fuller did not see the stipulation until the day of the trial. When Fuller saw the testimony, Fuller objected to the statements that he acknowledged one of the dogs was his and that he told Officer Lawson that the dogs must have broken loose and began fighting each other. Notwithstanding Fuller's objections, the stipulated testimony was admitted.

We do not need to address Fuller's constitutional arguments in order to resolve this issue. In addition to Officer Lawson's testimony, Eric Flynn ("Flynn"), a humane society officer, also testified to the facts that Fuller admitted one of the dogs was his and that Fuller said the dogs must have broken loose and began fighting each other. Even alleged error which raises constitutional concerns may be harmless beyond a reasonable doubt. Reid v. State, 529 N.E.2d 1309 (Ind.1988); Gilreath v. State, 577 N.E.2d 997 (Ind.Ct.App.1991), trans. denied. It is well recognized that any error in admitting evidence will be found harmless where the evidence is merely cumulative. Chappel v. State, 591 N.E.2d 1011, 1015 (Ind.1992), reh. denied. This proposition also applies where the alleged error is of a constitutional nature. See Id. (any error in admitting evidence from warrantless search was harmless beyond a reasonable doubt in light of its cumulative nature). Accordingly, we conclude any error in admitting the testimonial stipulation of Officer Lawson was harmless in light of Flynn's testimony which established the very same facts.

II.

Ind. Evidence Rule 404(b)

The State was permitted to introduce evidence, over Fuller's objection, of an injured dog and several dead dogs found on Fuller's property. Fuller claims the admission of this evidence was error and solely calculated to inflame the jury. We disagree.

The State relies on Ind. Evidence Rule 404(b) as justification for the admission of this evidence. Evid.R. 404(b) states that evidence of other crimes, wrongs, or acts is inadmissible in order to show action in conformity therewith, but such evidence may be admitted to prove, inter alia, knowledge or absence of accident. At trial, Fuller testified that when Officers arrived at his house, Fuller was unaware of what Fleming and Miller were doing behind his house with two injured dogs. Fuller stated he did not know how the dogs were injured. Too, Fuller explained to Flynn that the dogs must have broken their chains, gotten loose and began fighting each other. In short, Fuller stated he had no knowledge of dog fighting on his property or on how the dogs became injured. Fuller's explanation for the wounded dogs was that it must have been an accident. Thus, the court properly admitted evidence of the injured dog and several dead dogs found on Fuller's property to prove lack of knowledge or accident. Evid.R. 404(b).

III. Sufficiency of Evidence

Fuller also contends the evidence is insufficient to sustain his convictions for promoting or staging an animal fight and for using an animal in a fighting contest. We disagree.

When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh. denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id. Regarding circumstantial evidence, such evidence need not overcome every reasonable hypothesis of innocence. Moore v. State, 652 N.E.2d 53, 55 (Ind.1995), reh. denied. When reviewing a case that is essentially circumstantial, an appellate court asks whether reasonable minds could reach the inferences drawn by the jury. Gibson v. State, 643 N.E.2d 885, 888 (Ind.1994).

The facts most favorable to the verdict reveal that on March 1, 1994, a police officer was at Fuller's residence when he observed a dog with injuries on its head, face and legs. Police officers later returned to Fuller's residence on March 14, 1994 in response to a report of dog fighting. When they arrived, they observed Fuller walking towards the street and another person walking towards the back of the house carrying a dog. When the officers went to the rear of Fuller's house, they observed two men holding two pit bulls by the legs within approximately five feet of each other. The dogs had wounds that were still bleeding. Fuller later stated to Flynn that one of the dogs was his and that it must have broken loose from its chain and began fighting the other dog. However, Flynn examined the chain and found it to be extremely large, in good condition and of sufficient strength to "tow a Mack truck with it." Record at 253. Other chains in the area were found to be in similarly good condition. Dr. Sara Tieman opined that the dogs were involved in organized dog fighting given the nature and severity of their wounds and the conditions under which the dogs were kept. Further, the State presented evidence of several dead pit bulls found on...