Alice Lee v. State of Indiana , 2012 Ind. App. LEXIS 429 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW D. ANGLEMEYER GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
FILED
Indianapolis, Indiana
Aug 31 2012, 9:36 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
ALICE LEE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1112-CR-1090
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marc T. Rothenberg, Judge
Cause No. 49F09-1008-FD-61390
August 31, 2012
OPINION - FOR PUBLICATION
KIRSCH, Judge
Alice Lee (“Lee”) appeals her conviction for attendance at an animal fighting
contest1 as a Class A misdemeanor. On appeal, Lee raises the following restated issue:
whether Indiana Code section 35-46-3-10, which defines the offense, is
unconstitutionally vague.
We affirm.
FACTS AND PROCEDURAL HISTORY
On August 6, 2010, Tyrus Williams (“Williams”) and Shinitara Kemp (“Kemp”)
hosted a dog fight in the garage at their home on West 60th Street in Indianapolis. The
fight began around 10:00 p.m. Once the fight was underway, a confidential informant
who was attending the event alerted the police. At approximately 10:20 p.m., law
enforcement officers used their previously obtained “no-knock” warrant to enter the
house and the attached garage. Tr. at 23.
Inside the house and garage, officers found pit bulls and a room devoted to the
training and care of fighting dogs. The garage contained a fighting ring with two
exhausted dogs fighting in it and approximately twenty-four spectators, including Lee.
Police found Lee’s pit bull in her vehicle in the driveway of the residence. The other
guests’ vehicles were parked in the driveway of the residence and on the grass.
On August 10, 2010, the State charged Lee with (1) Class D felony promotion of,
use of animal at, or attendance with animal at an animal fighting contest, and (2) Class A
misdemeanor attendance at an animal fighting contest. At trial, Lee claimed that she had
1
See Ind. Code § 35-46-3-10.
2
been at the home only fifteen minutes before the police arrived because she was picking
up her pit bull from Williams and Kemp, who had been watching her dog for a few days.
Lee denied any knowledge of the dog fighting contest or of training fighting dogs. She
claimed the police discovered her in the garage within the fighting area only because she
fled from the house into the garage when she realized the police had arrived.
Lee’s bench trial commenced on October 24, 2011, and after the State rested, Lee
moved for an involuntary dismissal as to both counts. The trial court granted Lee’s
motion for involuntary dismissal on the Class D felony, but found her guilty of Class A
misdemeanor attendance at an animal fighting contest. Lee now appeals.
DISCUSSION AND DECISION
Lee contends that Indiana Code section 35-46-3-10 is unconstitutionally vague
because its language fails “to inform an ordinary person of what conduct is prohibited.”
Appellant’s Br. at 7. Additionally, Lee contends that the statute authorizes or encourages
arbitrary or discriminatory enforcement. Id. at 9. The State responds by contending that
Lee waived this issue when she failed to file a motion to dismiss, advancing the
contention of unconstitutionality, before the trial court. Appellee’s Br. at 4.
Addressing the State’s contention of waiver first, we agree that generally the
failure to file a proper motion to dismiss raising a constitutional challenge waives the
issue on appeal. Baumgartner v. State, 891 N.E.2d 1131, 1135 (Ind. Ct. App. 2008)
(citing Ind. Code §§ 35–34–1–6 and –4). Thus, Lee’s claim is waived. However, even
considering Lee’s vagueness argument on the merits, her claim fails.
Whether a statute is unconstitutional is a question of law and is reviewed de novo.
3
Shepler v. State, 758 N.E.2d 966, 968 (Ind. Ct. App. 2001), trans. denied (2002).
Appellate courts approach such questions with the presumption that the statute is
constitutional, and the challenger is burdened to prove otherwise. Lock v. State, 971
N.E.2d 71, 74 (Ind. 2012). “Any reasonable doubts and constructions as to the statute’s
validity are resolved in favor of constitutionality.” Id. (citing State v. Lombardo, 738
N.E.2d 653, 655 (Ind. 2000)).
“A fundamental aspect of our nation’s jurisprudence is that criminal statutes must
give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden so that no man shall be held criminally responsible for conduct which he could
not reasonably understand to be proscribed.” Id. (internal quotations omitted).
Accordingly, our Supreme Court has said that “due process requires that a penal statute
‘clearly define its prohibitions.’” Id. (quoting Brown v. State, 868 N.E.2d 464, 467 (Ind.
2007)). “If it fails ‘to provide notice enabling ordinary people to understand the conduct
that it prohibits’ or ‘authorizes or encourages arbitrary or discriminatory enforcement’
then it is subject to invalidation.” Id. at 74-75 (quoting Brown, 868 N.E.2d at 467).
“Additionally, ‘there must be something in a criminal statute to indicate where the line is
to be drawn between trivial and substantial things so that erratic arrests and convictions
for trivial acts and omissions will not occur.’” Id. (quoting State v. Downey, 476 N.E.2d
121, 123 (Ind. 1985)). “‘It cannot be left to juries, judges, and prosecutors to draw such
lines.’” Id. (quoting Downey, 476 N.E.2d at 123).
The following sections of the Indiana Code are pertinent to our analysis. Indiana
Code section 35-46-3-10, in pertinent part, provides: “A person who knowingly or
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intentionally attends a fighting contest involving animals commits cruelty to an animal, a
Class A misdemeanor.” (Emphasis added). “[An] ‘animal fighting contest’ means a
conflict between two (2) or more animals. The term does not include a conflict that is
unorganized or accidental.” Ind. Code § 35-46-3-4. Indiana Code section 35-46-3-3
provides: “As used in this chapter, “animal” does not include a human being.”
Lee contends that the word “attends” is so vague as to make the statute
unconstitutional. Lee suggests that various meanings of the word have criminalized
“being present at, taking care of, providing services at, watching over, or paying attention
to a fighting contest involving animals.” Appellant’s Br. at 8. She further suggests that
the vagueness of the statute has made it unclear whether it is a crime to watch a dog fight
on the internet, watch the simulation of a dog fight made for a movie, watch a friend feed
a mouse to his pet snake, or attend a circus and watch a man box with a kangaroo or
wrestle with a bear. However, the statute as written makes clear the answer to each of
these questions. The word “animal” does not involve a human being, therefore, watching
a human fight or wrestle any animal would not fall within the prohibitions of Indiana
Code section 35-46-3-10, which requires a conflict between two or more animals.2 Most
dog fights viewed on the internet would not fall within the prohibitions of section 35-46-
3-10 because the person could not be said to be attending the fight in the traditional sense
2
We do not address whether this activity would fall within the prohibitions of Indiana Code
section 35-46-3-12, which prohibits the beating of vertebrate animals or Indiana Code section 35-46-3-7
which prohibits the abandonment or neglect of vertebrate animals. Likewise we do not address whether
this activity would fall within the exception that the chapter does not apply to “Conduct not resulting in
serious injury or illness to the animal that is incidental to exhibiting an animal for show, competition, or
display, or that is incidental to transporting the animal for show, competition, or display.” Ind. Code §
35-46-3-5(a)(13).
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of the word.3 Likewise, a person who watches his friend feed a mouse to a snake is not
watching an organized event, and a simulated fight between animals that, presumably, are
not hurt, could not truly be said to be an animal fighting contest.
As applied to this offense, Lee’s vagueness argument amounts to claiming that the
statute’s failure to further define “attend” authorizes the prosecution of anyone who is in
the vicinity of an animal fighting contest without regard to their intent. However, in
determining whether a statute is unconstitutionally vague, this court is mindful that “[n]o
statute need avoid all vagueness, and ‘because statutes are condemned to the use of
words, there will always be uncertainties for we cannot expect mathematical certainty
from our language.’” Logan v. State, 836 N.E.2d 467, 473 (Ind. Ct. App. 2005) (quoting
Helton v. State, 624 N.E.2d 499, 507 (Ind. Ct. App. 1993), trans. denied, cert. denied,
520 U.S. 1119 (1997)), trans. denied (2006). Here, it is a sufficiently-clear warning to
say that criminal liability attaches to someone who knowingly or intentionally attends an
animal fighting contest. As the standard implies, cases will be decided on their own
facts.
Lee also contends that the statute in question invites arbitrary enforcement.
Appellant’s Br. at 9. Intent may be proved by circumstantial evidence. E.H. v. State, 764
N.E.2d 681, 683 (Ind. Ct. App. 2002) (citing Johnson v. State, 593 N.E.2d 208, 209 (Ind.
Ct. App. 1992)), trans. denied. Intent can be inferred from a defendant’s conduct and the
natural and usual sequence to which such conduct logically and reasonably points. Id.3
We reserve for another day the question of whether a person who pays to watch an animal fight
live on the internet can be said to be attending an animal fighting contest.
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The fact finder is entitled to infer intent from the surrounding circumstances. Id. at 683.
This does not mean that the finding of intent, and thus enforcement, is arbitrary. As our
Supreme Court noted in Brown v. State, “‘there must be something in a criminal statute to
indicate where the line is to be drawn between trivial and substantial things so that erratic
arrest and convictions for trivial acts and omissions will not occur.’” 868 N.E.2d at 467
(quoting Downey, 476 N.E.2d at 123). Here, there is no such concern. The statute under
which Lee was charged “convey[ed] sufficiently definite warning[s] as to the proscribed
conduct when measured by common understanding.” Rhinehardt v. State, 477 N.E.2d
89, 93 (Ind. 1985), overruled on other grounds, Stout v. State, 528 N.E.2d 476 (Ind.
1988). Further, it “provided[d] a constraining and intelligible enforcement standard for
those charged with enforcing the statutes.” Johnson v. State, 648 N.E.2d 666, 670 (Ind.
Ct. App. 1995) (citing Price v. State, 622 N.E.2d 954, 967 (Ind. 1993)).
Lee has failed to carry her “heavy burden” of proving that Indiana Code section
35-46-3-10 is unconstitutionally vague. The evidence supports the trial court’s judgment
of guilt.
Affirmed.
NAJAM, J., and MAY, J., concur.
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