Predaina v. State

• Decision Date: 13 September 2011
• Docket Number: No. 45A03-1006-CR-348,45A03-1006-CR-348
• Parties: ROBERT A. PREDAINA, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

ROBERT A. PREDAINA, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 45A03-1006-CR-348

COURT OF APPEALS OF INDIANA

September 13, 2011

Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

MARCE GONZALES, JR.

Dyer, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

NICOLE M. SCHUSTER

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Sheila M. Moss, Judge

Cause No. 45D08-0710-CM-1404

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Robert A. Predaina ("Predaina") appeals from his conviction after a jury trial of one count of criminal mischief¹ as a Class A misdemeanor. Predaina presents the following restated issues for our review:

I. Whether the trial court erred by refusing to give Predaina's tendered instructions;

II. Whether the trial court abused its discretion by limiting evidence of the value of Predaina's mother's service dog;

III. Whether the trial court abused its discretion by limiting closing arguments to fifteen minutes;

IV. Whether the trial court erred by certifying the transcript and rejecting Predaina's proposed changes;

V. Whether the trial court erred by admitting evidence of motive;

VI. Whether the prosecutor engaged in misconduct during the trial such that it constituted fundamental error; and

VII. Whether the alleged cumulative errors deprived Predaina of a fair trial.

We affirm.

FACTS AND PROCEDURAL HISTORY

On the evening of August 15, 2007, a horrible storm knocked down trees and cut the power to residents in Hobart, Indiana. At approximately 10:00 p.m. that night, people emerged from their homes in order to assess the damage caused by the storm. The Prietos let their eighteen-month-old golden retriever, named Max, out into their gated backyard to relieve himself. The Prietos were unaware that Max was able to escape the backyard, and hebegan to wander around the neighborhood.

Katherine ("Katie") and Nicholas ("Nicholas") Johnston (collectively "the Johnstons") discovered Max in the backyard of their home when they went to let their own dogs out. Max played with the dogs and then followed the Johnstons as they began walking toward the home of a person they believed was Max's owner.

Ultimately, the Johnstons got into their truck and drove around the neighborhood in an attempt to locate Max's owner while Max followed their truck. At some point, the Johnstons heard a dog yelp. When they turned their truck, they saw Max with Buddy, Predaina's mother's service dog, a dog they knew. Predaina had trained Buddy, who was five years old at the time of the incident, to assist his mother with issues related to her difficulties with mobility, vision, and hearing.

The Johnstons observed Max and Buddy interacting with each other. Nicholas believed that the dogs were fighting, while Katie believed they were playing. They observed Buddy as the aggressor pinning Max, and one of the dogs growled. They also saw Predaina standing on his front porch looking at the two dogs. As Nicholas started to exit the truck, Katie reminded him that neither dog belonged to them, and the dogs were not on their property.

The Johnstons remained in their truck and saw Predaina go into the house and return with a gun in his hand. Predaina pulled Buddy away from Max and then walked toward Max, who sat down in front of him. Predaina then shot Max between the eyes, instantly killing him. Nicholas shouted at Predaina, asking him why he shot Max. The Johnstonsdrove home to find a blanket and a telephone. Katie called 911, as did Predaina, to report the incident. The Johnstons returned to Predaina's home and covered Max's body with a blanket. Predaina told them that he had called the police. Predaina's mother took Buddy into the house and dried him off with a towel.

Gary Police Department Reserve Officer Donald Briggs ("Officer Briggs") responded to the 911 call and arrived at about 11:30 p.m. The power had not been restored to the neighborhood, so Officer Briggs and Hobart Police Officer Mark Mokris ("Officer Mokris"), who also responded to the call, used the headlamps and floodlights of their police cruisers to illuminate the scene. Officer Briggs took Predaina's statement, which was that Max was aggressive to both Predaina and Buddy, that Max was growling as he approached him, and that Max began to fight with Buddy. Predaina went inside to get his gun and had shot Max when Max tried to bite him. Predaina complained of a puncture wound on his right hand and a scratch behind his left knee that might have included a puncture wound from Max's attack. Predaina refused treatment from the responding emergency medical technician.

Predaina told Officer Mokris that he saw blood on Buddy during the fight between the two dogs and had shot Max. Officer Briggs overheard Predaina's comments and noted the differences between his statement to Officer Mokris and the statement he had given to him. Predaina told Officer Mokris that Max had attacked Buddy, did not mention that he had left the scene to get the weapon, and that Max had Buddy pinned by the neck when Predaina shot Max.

Officer Briggs filled out a supplementary report in which he noted the discrepancies inthe stories that Predaina had told him and Officer Mokris. The case was assigned to Hobart Police Deputy Chief Jeffrey White ("Deputy Chief White"). After further investigation, Deputy Chief White asked the prosecutor to file charges against Predaina related to the incident.

The State charged Predaina with one count of cruelty to an animal as a Class A misdemeanor and one count of criminal mischief as a Class A misdemeanor. At the conclusion of the jury trial, Predaina was acquitted of the cruelty to an animal offense, but was found guilty of criminal mischief. Predaina now appeals. Additional facts will be supplied as necessary.

DISCUSSION AND DECISION

I. Tendered Jury Instructions

Predaina argues that the trial court abused its discretion by failing to give his tendered jury instruction on self-defense. He also challenges the trial court's decision to refuse to give his tendered instructions related to: (1) allowing a dog to run at large; (2) failing to take reasonable steps to restrain a dog; and (3) allowing a domestic animal to become a public nuisance. "Jury instructions are solely within the discretion of the trial court; we will reverse only if the court abuses that discretion." Young v. State, 696 N.E.2d 386, 389 (Ind. 1998). An abuse of discretion occurs if the instructions, considered as a whole and in reference to each other, mislead the jury as to the applicable law. Id. at 389-90. In reviewing a trial court's decision to give or refuse tendered jury instructions, we consider: "(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support thegiving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given." Chambers v. State, 734 N.E.2d 578, 580 (Ind. 2000).

A. Self-Defense

Predaina was charged with the offenses of cruelty to an animal and criminal mischief. In order to be convicted of criminal mischief, the State was required to establish beyond a reasonable doubt that Predaina recklessly, knowingly, or intentionally damaged or defaced the property of the Prieto family without their consent and the value of the property was between $250 and $2,500 dollars. Ind. Code. § 35-43-1-2.

Predaina tendered a self-defense instruction, based on Indiana Code section 35-41-3-2, which the trial court rejected. He claims that the trial court erred and in so doing denied him the right to present a defense. A defendant is entitled to have the jury instructed on any theory of defense which has some foundation in the evidence. Springer v. State, 779 N.E.2d 555, 558 (Ind. Ct. App. 2002).

While acknowledging that the self-defense statute contemplates an attack by a person, Predaina argues that the statute does not preclude application of the common law defense of self-defense in situations such as this where the attacker is not a person. He directs us to Hunt v. State, 3 Ind. App. 383, 29 N.E. 933 (1892) in support of this argument. In Hunt, the defendant was prosecuted under a statute enacted to prevent cruelty to animals. In reversing the defendant's conviction, we held that

[i]f one destroys the life of an animal for the honest purpose of protecting his person or property, and the circumstances are of such a character as to reasonably justify the belief that the measure is necessary to that end, the act would not be in violation of the statute under consideration, though it turnedout that the apprehensions were in fact groundless and the destruction of life not necessary.

29 N.E. at 933.

In the present case, the trial court instructed the jury that it was a defense that Predaina "reasonably believed that the conduct was necessary to prevent injury to the accused person or another person; protect the property of the accused person from destruction or substantial damage; prevent a seriously injured vertebrate animal from prolonged suffering[.]" Tr. at 614; see also Ind. Code § 35-46-3-12(e)(1). This instruction was properly given and adequately covered, in conjunction with other instructions given on necessity and duress, the substance of Predaina's tendered instruction.

Self-defense is not codified as a defense to criminal mischief, and we decline the invitation to create a common law defense of self-defense to the offense of criminal mischief. Furthermore, "'[t]he law of self defense is a law of necessity;' the right of self-defense arises only when the necessity begins, and equally ends with the necessity; and never must the necessity be greater than when the force employed defensively is...