Hall v. State

• Decision Date: 10 July 2003
• Docket Number: No. 48A04-0209-CR-457.,48A04-0209-CR-457.
• Parties: Mark Shaun HALL and Christopher Hall, Appellants-Defendants, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

791 N.E.2d 257

Mark Shaun HALL and Christopher Hall, Appellants-Defendants, v. STATE of Indiana, Appellee.

No. 48A04-0209-CR-457.

Court of Appeals of Indiana.

July 10, 2003.

Patrick R. Ragains, Anderson, IN, Attorney for Appellants.

STEVE CARTER, Attorney General of Indiana, GRANT H. CARLTON, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Following a jury trial, Appellant Christopher Hall ("Chris") was convicted of Cruelty to an Animal, a Class A misdemeanor, and Appellant Mark Shaun Hall ("Mark") was convicted of Cruelty to an Animal, a Class A misdemeanor, and Dealing in a Sawed-off Shotgun, a Class D felony. Upon appeal, the Halls present two issues for our review, which we consolidate and restate as whether the evidence is sufficient to support their convictions.

We affirm.

The facts favorable to the jury's verdict reveal that, while patrolling on December 30, 2000, Deputy Robert Olesky of the Madison County Sheriff's Department observed two men, later identified as the defendants, walking with long guns but not wearing "hunter orange" clothing. Concerned that the defendants might be in violation of hunting laws, Olesky pulled his patrol car to the side of the road and observed the defendants with binoculars. Chris was carrying a rifle and pointed it at something on the ground a short distance away, shooting approximately twenty times. Mark fired a shotgun twice, once at a short distance away and once at very close range, "pretty much just straight down towards its feet." Transcript at 30.

Olesky drove up to the defendants and discovered that they had been shooting at a cat. The cat had been hit numerous times and was dead. Olesky took possession of the rifle Chris had been using and eventually retrieved the shotgun from Mark as well, which was determined to be below the statutory minimum length. The State charged both defendants with Cruelty to an Animal and charged Mark with Dealing in a Sawed-off Shotgun. Following a jury trial held on June 6, 2002, both defendants were found guilty as charged. The trial court entered judgment on the convictions and sentenced Chris to one year suspended and to be served on probation. Mark was sentenced to three years incarceration, with six months executed and to be served in a work-release program and thirty months suspended and to be served on probation.

I Dealing in a Sawed-off Shotgun

Mark claims that the evidence is insufficient to support his conviction for Dealing in a Sawed-off Shotgun. The statute defining this offense states, "A person who ... gives, lends, or possesses ... any sawed-off shotgun commits dealing in a sawed-off shotgun, a Class D felony." Ind. Code § 35-47-5-4.1(a) (Burns Code Ed. Repl.1998). A "sawed-off shotgun" is defined as:

"(1) a shotgun having one (1) or more barrels less than eighteen (18) inches in length; and

(2) any weapon made from a shotgun (whether by alteration, modification, or otherwise) if the weapon as modified has an overall length of less than twenty-six (26) inches." Ind.Code § 35-47-1-10 (Burns Code Ed. Repl.1998).

A shotgun meeting either of these definitions is considered a sawed-off shotgun.¹ Brook v. State, 448 N.E.2d 1249, 1251 (Ind. Ct.App.1983).

In the present case, Mark does not deny that the shotgun he possessed was prohibited by the above-cited statute. He does, however, claim that despite the lack of a mens rea element in I.C. § 35-47-5-4.1, there must nevertheless be some showing that he knew that the weapon he possessed was contrary to the statute. The State counters that in Brook, 448 N.E.2d at 1252, this court held that the predecessor statute to I.C. § 35-47-5-4.1, Ind.Code § 35-23-9.1-2(a),² defined a crime of general rather than specific intent. The State therefore argues that it did not have to prove that Mark intentionally or knowingly possessed a sawed-off shotgun. Regardless, even if we were to accept the view that the State was somehow required to prove specific intent, the evidence reveals that Mark knew that the shotgun in his possession was not within the legal length restrictions. Officer Olesky testified that when he asked Mark why he had hidden the shotgun, Mark replied, "`[be]cause it's too short.'" Transcript at 36.

Mark also claims that the shotgun in his possession measured 25 7/8, which is only 1/8 below the legally permissible length. See I.C. § 35-47-1-10(2). Officer Olesky testified that the shotgun measured 25 1/2 and that the barrel was 13 1/2 in length. Thus, the barrel length was 4 1/2 below the legally permissible length. See I.C. § 35-47-1-10(1). Under either subsection of I.C. § 35-47-1-10, Mark possessed a sawed-off shotgun, and possession of a sawed-off shotgun is sufficient to support a conviction for dealing in a sawed-off shotgun. Brook, 448 N.E.2d at 1251-52.

II Cruelty to an Animal

The defendants claim that the evidence is insufficient to support their convictions for Cruelty to an Animal. The statute under which the defendants were charged reads in relevant part, "A person who knowingly or intentionally tortures, beats, or mutilates a vertebrate animal commits cruelty to an animal, a Class A misdemeanor." Ind.Code § 35-46-3-12(a) (Burns Code Ed. Repl.1998).³ Here, Chris was charged as follows:

"On or about December 30, 2000, at a location in Madison County, State of Indiana, Christopher A. Hall did knowingly or intentionally mutilate a vertebrate animal, to-wit: by firing approximately thirty (30) projectiles from a shotgun into the body of a carcass of a cat until the cat was dead and its corpse mutilated." Appendix at 35.

Mark was charged with nearly identical language.

In one sentence, Chris claims that no evidence was presented at trial that he used a shotgun as alleged in the charging information. Indeed, the evidence presented at trial revealed that Chris used a rifle whereas Mark used a shotgun. Although Chris develops this argument no further, we note that where there is an essential difference between proof and pleading, a variance exists. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). However, not all variances require reversal. Id.

Here, there is no indication in the record that Chris objected to this variance at trial. Failure to make a specific objection at trial waives any material variance issue. Bayes v. State, 779 N.E.2d 77, 80 (Ind.Ct.App.2002), trans. denied. Chris also fails to explain exactly how he was misled by the alleged variance in the preparation and maintenance of his defense or how he was harmed or prejudiced thereby. See Allen, 720 N.E.2d at 713

.

Although the information alleges the use of a shotgun and the proof adduced at trial was that Chris used a rifle, the means used to commit animal cruelty is not an element of the crime. See I.C. § 35-46-3-12. In addition, the weapons are not dissimilar in their propensity to wound or injure. We therefore conclude that any variance between the pleading and the proof in the present case does not require reversal. See Mitchem v. State, 685 N.E.2d 671 (Ind. 1997)

(because the weapon used is not an element of attempted murder, it was unnecessary to allege which weapon was used, and no fatal variance existed where attempted murder charging information alleged defendant used shotgun and handgun, but proof adduced at trial was that defendant used a rifle, because all were firearms); Madison v. State, 234 Ind. 517, 130 N.E.2d 35 (1955) (no fatal variance where information was more specific than required by law in that information alleged use of hand grenade filled with nitroglycerine, but grenade was actually filled with T.N.T., because the weapon used was of a similar nature and caused the same character of wound or injury as weapon alleged) (Arterburn, J., concurring, joined by three other justices).

The same conclusion applies to the allegation that thirty projectiles hit the cat. The means used to mutilate the cat is not an element of the crime, and the defendants do not explain how they were misled by the alleged variance or how they were harmed or prejudiced thereby. Thus, any variance between the charging information and the proof in this manner is not fatal. We further note that the charging information does not, as the defendants argued at trial and upon appeal, allege that each defendant shot the cat thirty times. Instead, it alleges that thirty projectiles were fired into the cat. A typical shotgun shell fires more than one projectile with each shot. An allegation that thirty projectiles were fired into the cat is not inconsistent with evidence that Mark shot the cat twice with a shotgun. Also, despite the defendants' claims to the contrary, there was testimony that Chris fired the rifle approximately twenty times.

The defendants' main argument is that there is insufficient evidence that they mutilated the cat as charged. In support of this contention, the defendants cite Boushehry v. State, 648 N.E.2d 1174 (Ind.Ct. App.1995). In Boushehry, the defendant was charged and convicted of two counts of knowingly torturing or mutilating a Canadian goose resulting in the death of the goose. The facts leading to Boushehry's arrest and conviction were that he had instructed Jim Waugh to shoot geese. Waugh fired two or three shots from a .22 caliber rifle, killing one goose and wounding another. Boushehry then cut the wounded bird's throat to kill it.

Upon appeal, Boushehry claimed that there was insufficient evidence to establish that he or Waugh had either tortured or mutilated either bird. The State countered that the act of shooting the geese constituted mutilation. The Boushehry court held that the act of shooting the goose which died instantly was insufficient to support a conviction for cruelty to an animal. Specifically, the court wrote:

"One goose died instantly; there was no evidence presented at trial that either Boushehry or Waugh tortured or mutilated this goose in achieving its death. The act of shooting the goose

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