Patrick Green v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D), this                     Mar 18 2015, 9:21 am
    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.
    ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Ruth Johnson                                             Gregory F. Zoeller
    Marion County Public Defender Agency                     Attorney General of Indiana
    Appellate Division
    Indianapolis, Indiana                                    Kenneth E. Biggins
    Deputy Attorney General
    Timothy J. Burns                                         Indianapolis, Indiana
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Patrick Green,                                           March 18, 2015
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A04-1406-CR-273
    v.                                               Appeal from the Marion Superior
    Court
    State of Indiana,                                        The Honorable David Cook, Judge
    Appellee-Plaintiff.
    Cause No. 49F07-1306-CM-36556
    Kirsch, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015   Page 1 of 13
    [1]   Following a bench trial, Patrick Green was convicted of animal cruelty, 1 a Class
    A misdemeanor. He appeals raising two issues that we restate as:
    I. Whether the trial court erred in admitting evidence obtained by the
    animal control officer at the scene; and
    II. Whether the State presented sufficient evidence to convict Green.
    [2]   We affirm.
    Facts and Procedural History
    [3]   On March 12, 2013, Indianapolis Animal Care and Control (“ACC”) Officer
    Michael Bonito was dispatched to Green’s residence in Indianapolis to
    investigate possible animal neglect. Officer Bonito advised Green of the reason
    for his visit, and Green was cooperative and friendly, escorting Officer Bonito
    to the backyard of the residence to view two dogs. One dog, gray in color,
    appeared healthy. Officer Bonito observed another dog, a brown pit bull,
    housed separately in a chain-link enclosure area that contained a plastic igloo-
    shaped kennel. The brown dog was emaciated; its hips, spine, and ribs bones
    were clearly visible and protruding. The dog had an open, infected wound on
    each front leg; one wound was open down to the bone. The dog’s ankle joints
    were swollen to twice their normal size. At least one front leg was broken, such
    that the foot was at an unnatural angle, and the dog could not walk. There was
    1
    See 
    Ind. Code § 35-46-3-7
    (a)(1)(2). We note that, effective July 1, 2014, a new version of this statute was
    enacted, but because Green committed the offense in 2013, we will apply the statute in effect at that time.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015               Page 2 of 13
    food and water about a foot and a half away from the dog. Officer Bonito
    observed a large amount of urine and feces inside the dog’s kennel.
    [4]   Green told Officer Bonito that his son, Kenneth Green (“Kenneth”) was the
    dog’s owner. Kenneth had brought the dog to Green’s home several weeks
    prior and asked Green to temporarily keep the dog at his house, while Kenneth
    moved residences. Green permitted him to leave the dog, but told Kenneth that
    he was responsible for taking care of it. Green tried to feed the dog once, but
    the dog bit him. Green had poor eyesight, but could see the dog at the back of
    the lot and was aware that it had wounds, believing them to have been caused
    by a raccoon attack. Green explained to Officer Bonito that he did not have the
    financial resources to take the dog to a veterinarian, but that he had called his
    son multiple times and told him to come and get the dog and take care of it, but
    Kenneth had not done so. Green telephoned Kenneth while Officer Bonito was
    at the residence, and Officer Bonito spoke to Kenneth.
    [5]   Eventually, Officer Bonito loaded the dog onto a piece of plywood and, with
    Green’s assistance, loaded the dog into his truck to transport it to ACC. During
    this time, Kenneth arrived at the scene. Officer Bonito conversed with Kenneth
    and issued citations to him for the lack of “care and treatment, . . . no rabies
    tags, no [] identification.”2 Tr. at 30.
    2
    Although Officer Bonito’s testimony indicates that he cited Kenneth, Green’s brief indicates that “citations
    were issued to both [Green] and his son.” Appellant’s Br. at 3.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015              Page 3 of 13
    [6]   The dog was transported to ACC and, after being assessed, was euthanized.
    Thereafter, an ACC veterinarian examined the dog and determined that it was
    in a severe state of malnutrition, had muscle wasting and visible vertebrae, ribs
    and hips. It had overgrown nails and fleas crawling on fur. The wounds were
    open, and one was so deep that the bone was visible. The veterinarian
    indicated that sepsis was likely. She also testified that the wounds were not
    consistent with an animal attack. An ACC supervisor referred the matter for
    criminal prosecution.
    [7]   The State charged Green with Class A misdemeanor cruelty to an animal. It
    alleged that, on or about February 12, 2013 to March 12, 2013, Green
    recklessly, knowingly, or intentionally abandoned or neglected the brown dog
    by failing to provide adequate food and/or failing to seek veterinary care for an
    injury or illness that seriously endangered the life or health of the dog that was
    in Green’s custody. Appellant’s App. at 5.
    [8]   At the bench trial, the State called as witnesses: (1) Officer Bonito; (2) ACC
    veterinarian Natalie Mickelson (“Mickelson”); and (3) an ACC field supervisor,
    and Green later testified in his own case-in-chief. During Officer Bonito’s
    testimony, he described his initial meeting with Green:
    Q:     And, did you come into contact with anyone when you came to
    that property?
    A:     I did. When I arrived, I came into contact with Mr. Patrick
    Green, uh, who was residing at the residence and I identified myself as
    an Officer with the City of Indianapolis, Animal Care and Control.
    ....
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015   Page 4 of 13
    Q:      Upon coming into contact with Patrick Green, what did you
    do?
    A:    I advised Mr. Green of uh, why I was there on his property.
    Uh, Mr. Green was very friendly, very cooperative and uh, I advised
    him that I needed to go and look at the dogs that were at the residence.
    Q:      Did he permit you to do so?
    A:      He did.
    Q:      And, did you have occasion to observe the dogs?
    Tr. at 8-9. At this point, Green’s counsel objected and made a motion to
    suppress the evidence obtained by Officer Bonito, namely the brown pit bull,
    arguing that Green’s consent to enter the premises and see the dogs was not
    voluntary. The State responded that Officer Bonito had no arrest powers and,
    at that point, was not conducting a criminal investigation; rather, he was acting
    upon a tip regarding the welfare of an animal. The State also asserted that
    Indianapolis city ordinances permitted Officer Bonito to check on the animal.
    After receiving argument, the trial court denied Green’s motion, finding that the
    circumstances did not constitute a search. 
    Id. at 14-16
     (“I have not heard
    evidence that a search has been conducted.”)
    [9]   Following the presentation of evidence, the trial court found Green guilty, and
    sentenced him to 180 days, of which 178 days were suspended and he received
    credit time for the remaining two days. The trial court imposed 178 days of
    non-reporting probation, as well as fines and costs to be paid during that
    probationary period. Green now appeals.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015   Page 5 of 13
    Discussion and Decision
    I. Admission of Evidence
    [10]   Green asserts that the trial court erred when it admitted evidence obtained by
    Officer Bonito “after illegally entering [Green’s] home.” Appellant’s Br. at 1.
    Admission of evidence is within the sound discretion of the trial court. Davis v.
    State, 
    907 N.E.2d 1043
    , 1048 (Ind. Ct. App. 2009). 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 it. 
    Id.
    [11]   Green challenges the legality of the entry into his home by Officer Bonito.
    Green acknowledges that a warrantless search based on lawful consent is
    consistent with both the Indiana and Federal Constitutions, citing Campos v.
    State, 
    885 N.E.2d 590
     (Ind. 2008), but argues that his consent to enter and
    search for the dogs was not voluntary. Appellant’s Br. at 6. Assuming without
    deciding (1) that Officer Bonito’s activities at Green’s home constituted a
    “search” and (2) that the constitutional protections applicable to searches apply
    to a search conducted only by an ACC officer, as opposed to one executed with
    the assistance of a police officer, we address the merits of Green’s claim that his
    consent to the search was not voluntary.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015   Page 6 of 13
    [12]   Voluntariness is a question of fact determined from the totality of
    circumstances.3 Garcia-Torres v. State, 
    949 N.E.2d 1229
    , 1237 (Ind. 2011).
    Under both the Fourth Amendment and the Indiana Constitution, the State
    carries the burden of proving that the consent was voluntarily given, and not the
    result of duress or coercion, express or implied. Campos, 885 N.E.2d at 600.
    Green argues that his consent was involuntary and invalid because it was the
    result of coercion. Specifically, he asserts that he was the victim of implied
    police coercion, based on the following statement by Officer Bonito: “I advised
    him that I needed to go and look at the dogs that were at the residence.” Tr. at
    8-9. The crux of Green’s argument is that, because Officer Bonito said that he
    “needed” to see the dogs, he thereby implied that refusing to consent was not
    an option, making it the product of coercion. Appellant’s Br. at 7.
    [13]   Here, Officer Bonito testified at trial that he was dispatched to the home to
    check on the welfare of one or more dogs. Upon arriving, Officer Bonito
    encountered Green and explained his reason for coming to Green’s home.
    Green was friendly and cooperative, and he escorted Officer Bonito to the
    backyard to view the dogs. Green explained that the brown pit bull belonged to
    3
    The “totality of the circumstances” from which the voluntariness of a defendant’s consent is to be
    determined includes, but is not limited to, the following considerations: (1) whether the defendant was
    advised of his Miranda rights prior to the request to search; (2) the defendant’s degree of education and
    intelligence; (3) whether the defendant was advised of his right not to consent; (4) whether the detainee has
    previous encounters with law enforcement; (5) whether the officer made any express or implied claims of
    authority to search without consent; (6) whether the officer was engaged in any illegal action prior to the
    request; (7) whether the defendant was cooperative previously; and (8) whether the officer was deceptive as to
    his true identity or the purpose of the search. Navarro v. State, 
    855 N.E.2d 671
    , 675 (Ind. Ct. App. 2006)
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015             Page 7 of 13
    his son, who, with Green’s permission, had left the dog at Green’s residence
    several weeks prior. Green told Officer Bonito that he tried to feed the dog, but
    that it bit him, and he was afraid of it. Green was aware that the dog was
    injured and indicated that he believed the leg wounds may have been the result
    of a raccoon attack. Green knew the dog needed medical attention, and he kept
    calling his son to come and take care of it, but he did not do so. Green
    eventually helped Officer Bonito load the dog into the ACC truck.
    [14]   We are not persuaded that Officer Bonito’s singular statement that he “needed”
    to check on the dogs converted the situation into a coercive environment.
    Rather, Officer Bonito, an ACC officer, was simply providing Green with the
    reason for his visit, namely to check on the welfare of one or more dogs at the
    home. Thus, there was no deception on the part of Officer Bonito. There were
    not multiple police officers or police vehicles at the scene. The situation was
    not threatening or confrontational. Green was not under arrest or entitled to
    Miranda rights at the time of consent. Although there was no evidence
    presented that Green was informed of his right not to consent, this court has
    declined to adopt a bright-line rule requiring a defendant be informed of his
    right to refuse consent in order to find a consent is voluntary. Navarro v. State,
    
    855 N.E.2d 671
    , 679 (Ind. Ct. App. 2006). Looking at the totality of the
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015   Page 8 of 13
    circumstances, Green has not established the existence of any coercive activity,
    and we hold that Green’s consent was freely and voluntarily given.4
    II. Sufficiency of the Evidence
    [15]   Green claims that the State failed to present sufficient evidence to convict him
    of animal cruelty. The deferential standard of review for sufficiency claims is
    well settled. This court will neither reweigh the evidence nor assess the
    credibility of witnesses. Tooley v. State, 
    911 N.E.2d 721
    , 724 (Ind. Ct. App.
    2009), trans. denied; Elisea v. State, 
    777 N.E.2d 46
    , 48 (Ind. Ct. App. 2002).
    Rather, we will consider only the evidence and reasonable inferences most
    favorable to the trial court’s ruling. Elisea, 
    777 N.E.2d at 48
    . We will affirm
    unless no reasonable fact-finder could find the elements of the crime proven
    beyond a reasonable doubt. Tooley, 
    911 N.E.2d at 724-25
    . Thus, if there is
    sufficient evidence of probative value to support the conclusion of the trier of
    4
    Even if Green’s consent was deemed involuntary, it is possible that a warrantless search might have been
    proper. Our Supreme Court has specifically recognized, “[T]here is no legitimate privacy interest in the
    appearance of a dog that has been tied up outside in an area readily observable by the public.” Trimble v.
    State, 
    842 N.E.2d 798
    , 803 (Ind. 2006), adhered to on reh'g, 
    848 N.E.2d 278
     (Ind. 2006). Where a police officer
    has received a timely tip concerning a possibly dangerous situation, the general privacy interest is diminished,
    and in some cases, information available to an officer may be sufficient to trigger an investigation from public
    space, which may justify further action, including entry into a yard. 842 N.E.2d at 804. “Once in the yard,
    the object of his search – an ambulatory animal in open space – is fair game; particularly when there are
    immediate health concerns regarding the dog.” Id.; see also Davis v. State, 
    907 N.E.2d 1043
    , 1048 (Ind. Ct.
    App. 2009) (exigent circumstances permitted police officer to search curtilage in absence of search warrant).
    Because the record before us does not indicate whether the brown pit bull and its enclosure could be seen by
    the public, and because we find Green’s consent was voluntarily given, we make no finding regarding
    whether a warrantless search would have been permissible in this case.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015               Page 9 of 13
    fact, then the verdict will not be disturbed. Trimble v. State, 
    848 N.E.2d 278
    , 279
    (Ind. 2006).
    [16]   Indiana Code section 35-46-3-7(a) provides that a person who has a vertebrate
    animal in his or her custody and who recklessly, knowingly, or intentionally
    abandons or neglects the animal, commits cruelty to an animal, a Class A
    misdemeanor. In claiming that the evidence was insufficient, Green initially
    asserts that there was a “lack of evidence that [he] had custody of his son’s
    dog.” Appellant’s Br. at 4. He directs us to Merriam-Webster Dictionary’s
    definition of custody: “immediate charge and control exercised by a person or
    an authority; the act of protecting or taking care of something.” 
    Id. at 8
    . Green
    argues that because he had no control over the dog and was unable to take care
    of it, he therefore did not have custody of it. We reject Green’s claim in this
    regard. We understand that Green did not own the dog; however, he agreed to
    allow Kenneth to leave the dog at his home for some temporary period of time
    while Kenneth moved residences. That is, the dog was not left at his home
    without his knowledge or consent. Furthermore, the dog started residing at
    Green’s home at least several weeks prior to Officer Bonito’s visit. That Green
    expressly instructed his son to feed and care for the dog does not obviate the
    fact that the dog was at Green’s home, in his yard, and that, while it was there,
    Green was responsible for its welfare. We find that, based on the facts and
    circumstances before us, Green had custody of the brown pit bull.
    [17]   Green also claims that the evidence was insufficient because “the record is
    completely devoid of any facts that [Green] acted recklessly.” Appellant’s Br. at
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015   Page 10 of 13
    7. A person engages in conduct “recklessly” if he engages in the conduct in
    plain, conscious, and unjustifiable disregard of harm that might result and the
    disregard involves a substantial deviation from acceptable standards of conduct.
    
    Ind. Code § 35-41-2-2
    (c). The record before us reveals that Green did not want
    the dog or intend to keep or take care of it, but he nevertheless gave his son
    permission to leave it at his home. When Officer Bonito found the dog, it was
    severely emaciated. Mickelson testified that, on a “body conditions scale,”
    from one to nine, the dog’s score was a one, meaning it had no muscle fat and
    its entire skeleton was visible. Tr. at 40. The dog’s carpal bones, similar to the
    human wrist, were dislocated or fractured on both front legs. It also had open,
    oozing wounds on both front legs. Mickelson testified that the severity of those
    wounds indicated that the injury had occurred anywhere between ten days to
    five weeks prior. She also stated that the injuries were not consistent with an
    animal attack. The front joints were very swollen, indicating sepsis, a bacterial
    infection. The dog was not able to walk. It was lying in its own feces and
    urine. Green had issues with his vision, and he did not approach the dog to
    inspect its injuries, but the evidence presented established that Green was aware
    that the dog was suffering with serious wounds and needed medical care.
    Green testified that he could not afford veterinary care, but he made multiple
    calls to his son, Kenneth, over the prior several weeks, asking Kenneth to get
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015   Page 11 of 13
    the dog and take it for veterinary care, but Kenneth did not do so.5 Green tried
    to feed the dog once, but the dog bit him, so Green did not attempt to feed it
    anymore. Green testified that the other gray pit bull, in healthy condition,
    belonged to his girlfriend, who resided with Green at the residence. There was
    no evidence that she also fed the brown dog. Based on the brown dog’s
    severely emaciated condition, it is reasonable to infer that no one was feeding it.
    [18]   After the close of evidence, the trial court shared that it was “sympathetic” to
    Green for having been “placed in this position[.]” Tr. at 80. However, as the
    trial court reminded Green, he accepted physical custody of the dog, albeit as a
    favor to his son, and in so doing, Green accepted certain reasonable duties.
    The trial court observed that Green, in spite of his own physical ailments,
    understood that the dog needed medical attention. The trial court explained
    that the law does not allow a person, who has the physical care and custody of
    an animal, to neglect the animal, but avoid liability, “by . . . picking up the
    phone and calling the owner and saying your dog is dying in my backyard.” 
    Id. at 79-80
    . The trial court determined that Green recklessly disregarded the signs
    and symptoms of the dog’s condition and failed to ensure that it received proper
    care, and it found Green guilty of committing animal cruelty. We find that the
    State presented sufficient evidence of probative value to support that
    determination. See Trimble, 848 N.E.2d at 279 (where dog was malnourished,
    5
    At trial, an ACC supervisor testified to the various free or low-cost veterinary services available to the
    public. Green testified that he did not know about those available services, but if he had known, he would
    have contacted ACC.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015            Page 12 of 13
    injured, and frostbitten, evidence was sufficient to establish that defendant
    abandoned or neglected dog left in his care).
    [19]   Affirmed.6
    Friedlander, J. and Crone, J., concur.
    6
    We note that, at the sentencing hearing, the trial court inquired and the State confirmed that Green’s son,
    Kenneth, was “subsequently charged,” although with what offense(s) is not specified in the record before us.
    Tr. at 83.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-273 | March 18, 2015           Page 13 of 13
    

Document Info

Docket Number: 49A04-1406-CR-273

Filed Date: 3/18/2015

Precedential Status: Precedential

Modified Date: 3/18/2015