Edward W. Clemons v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW B. ARNETT GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
Apr 04 2013, 9:18 am
IN THE
COURT OF APPEALS OF INDIANA
EDWARD W. CLEMONS, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1207-CR-327
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY CIRCUIT COURT
The Honorable Charles D. O’Connor, Judge
Cause No. 73C01-1008-FD-117
April 4, 2013
OPINION – FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Edward Clemons (Clemons), appeals his conviction for
Count I, possession of an animal for purposes of an animal fighting contest, a Class D
felony, Ind. Code § 35-46-3-8; Count II, possession of animal fighting paraphernalia, a
Class B misdemeanor, I.C. § 35-46-3-8.5; and Count III, promoting an animal fighting
contest, a Class D felony, I.C. § 35-46-3-9.5.
We affirm.
ISSUES
Clemons raises three issues on appeal, which we restate as:
(1) Whether the State presented sufficient evidence beyond a reasonable doubt to
sustain Clemons’ conviction for possession of an animal for purposes of an
animal fighting contest as a Class D felony;
(2) Whether the State presented sufficient evidence beyond a reasonable doubt to
sustain Clemons’ conviction for possession of animal fighting paraphernalia as
a Class B misdemeanor; and
(3) Whether the State presented sufficient evidence beyond a reasonable doubt to
sustain Clemons’ conviction for promoting an animal fighting contest as a
Class D felony.
FACTS AND PROCEDURAL HISTORY
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John Goodwin (Goodwin) is the Director of Animal Cruelty Policy at the Humane
Society of the United States. He investigates animal cruelty and works with law
enforcement to eliminate animal fighting contests. His specialty is cockfighting – animal
fighting contests in which two roosters, also called ‘battle cocks’ or ‘gamefowl,’ fight
each other, often to the death. As part of his work, Goodwin reviews trade journals on
cockfighting. Goodwin obtained a 2010 issue of Pit Games magazine, a cockfighting
trade journal, which contained an article on Clemons entitled “The Breeder from
Indiana.” (State’s Exh. No. 2).
The article noted that Clemons had been to the Philippines about twenty-five times
over the last ten years and was a guest at the “World Slasher” cockfighting contest held
there in January 2010. (State’s Exh. No. 2). Clemons offered his views on breeding and
its impact on producing successful battle cocks. Familiar with differences between
American, Mexican, and Filipino cockfighting, Clemons gave advice on how to breed
birds compatible with Filipino fighting styles, which require a less aggressive bird. “His
bloodlines are reasonably priced at 1,000 dollars for a 6-month-old breeding trio [i.e., two
hens and one rooster]. This price already includes shipping to California.” (State’s Exh.
No. 2). Although mentioning that cockfighting was illegal in Indiana and his insistence
on obeying the law, Clemons bemoaned the activities of animal rights groups, deeming
them “anti-human,” rather than “pro-animal.” (State’s Exh. No. 2). The article featured
pictures of Clemons posing with various breeds of roosters and with two persons
renowned in the cockfighting world. Goodwin eventually called Clemons and expressed
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an interest in purchasing battle cocks. Clemons told Goodwin what qualities were
desirable in fighting roosters. Clemons said that he would sell his birds and that although
cockfighting was a felony in Indiana, it was only a misdemeanor in Kentucky.
Thereafter, Goodwin obtained an aerial photograph of Clemons’ farm in Shelby County,
Indiana, which depicted housing for roosters, including barrels, breeding cages, and fly
cages.
The following week, Goodwin contacted John Bolin (Officer Bolin) from the
Indiana Gaming Commission (IGC) and provided him with information gleaned from
Clemons and the aerial map. On July 7, 2010, Officer Bolin conducted surveillance of
Clemons’ farm and confirmed what the aerial map had showed. Under the guise of
purchasing a truck, Officer Bolin later contacted Clemons and arranged a meeting at
Clemons’ farm. There, Officer Bolin observed numerous roosters placed in individual
cages or tethered to a barrel, which had a board on top with food and water. He noticed
that a number of roosters were missing their ‘wattles’ (the fleshy protuberance at the
throat) and ‘combs’ (the fleshy protuberance on the top of the head), and had shortened or
removed spurs, the bone-like horn on their legs. Clemons told Officer Bolin that he used
to be a ‘cockfighter,’ but now only sells, buys, and breeds roosters.
Officer Bolin obtained a search warrant and along with other IGC officers returned
to Clemons’ farm. There, they found several items indicating that Clemons ran a
cockfighting operation. In addition to the individual cages and tethered stands, these
included boxes used to transport roosters, a small workbench with a toolbox containing
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grooming and surgical tools, some of which were stained with blood and had small bits of
feathers on them. A long knife used in Filipino cockfighting as an attachment to the
rooster’s leg was found under the workbench in a coffee can. IGC officers also found
medicines and vitamins with pictures of gamefowl on the label; numerous tags with
Clemons’ name on them; and magazines, videos, and instructional manuals on training
battle cocks. One video depicted cockfighting and its operation and one document,
issued by the American Gamefowl Society, that “basically told a person, that is running a
[cockfighting] operation, what to say and what not to say when approached by law
enforcement.” (Transcript p. 82). Approximately 193 birds were identified on the farm,
with a ratio of one rooster to two hens. Many roosters had been dubbed, meaning that
their wattles and combs had been removed, and many had their spurs shortened. Fifty
roosters were tethered to barrels. Officer Bolin also subpoenaed Clemons’ cell phone
records, including a list of calls and text messages. The text messages included Clemons’
sale of gamefowl and preparation for shipping to the Philippines and a conversation
between Clemons and associate regarding sales of gamefowl and information on a
cockfighting contest in Kentucky, including entry fees, dates, and how winners are
determined – “[o]ne lives, one doesn’t.” (Transcript p. 115).
Phillip Laux (Officer Laux), also from the IGC, interviewed Clemons while other
officers executed the search warrant. Clemons told Officer Laux that he sold 20 adult
birds a year to customers in the United States, Mexico, and the Philippines. Clemons
used information from cockfights to determine which fowl to keep and raise. Although
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Clemons insisted that he did not sell his birds to fight, he admitted that he had no control
over how his customers used them. When asked whether he had any cockfighting
paraphernalia, Clemons said no. IGC officers later brought the knife to Clemons, he
identified the knife as his, and that it was a type of knife used in Filipino cockfights.
On August 10, 2010, the State filed an Information charging Clemons with Count
I, possession of an animal for purposes of an animal fighting contest, a Class D felony,
I.C. § 35-46-3-8; Count II, possession of animal fighting paraphernalia, a Class B
misdemeanor, I.C. § 35-46-3-8.5; and Count III, promoting an animal fighting contest, a
Class D felony, I.C. § 35-46-3-9.5. On August 24, 2011, Clemons filed an affidavit of
religious beliefs with the trial court. According to Clemons, devotion to his religious
beliefs required him to “breed, raise, and fight” and sacrifice gamefowl. (Appellant’s
App. p. 159). He also announced his intention to move to the Philippines following trial
where he would advocate against “evil animal rights activists from being allowed in that
country.” (Appellant’s App. p. 161).
On May 20-23, 2012, a jury trial was held, following which Clemons was found
guilty as charged. On June 21, 2012, the trial court sentenced Clemons to fifteen months’
each on Counts I and III and 180 days on Count II. All sentences were to run
concurrently and suspended to probation, for an aggregate sentence of fifteen months of
probation.
Clemons now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
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I. Standard of Review
Clemons challenges the sufficiency of the evidence to support his convictions.
Our standard of review with regard to sufficiency claims is well settled. In reviewing a
sufficiency of the evidence claim, this court does not reweigh the evidence or judge the
credibility of the witnesses. Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007),
trans. denied. We consider only the evidence most favorable to the verdict and the
reasonable inferences drawn therefrom and will affirm if the evidence and those
inferences constitute substantial evidence of probative value to support the judgment. Id.
at 213. Regarding circumstantial evidence, such evidence need not overcome every
reasonable hypothesis of innocence. Fuller v. State, 674 N.E.2d 576, 578 (Ind. Ct. App.
1996). Reversal is appropriate only when reasonable persons would not be able to form
inferences as to each material element of the offense. Perez, 872 N.E.2d at 213.
II. Possessing an Animal for an Animal Fighting Contest
Clemons first argues that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his conviction for possessing an animal for the purpose of an
animal fighting contest because there was no evidence that he participated in
cockfighting. Ind. Code § 35-46-3-8 criminalizes the purchase or possession of animals
“for the purpose of using the animal in an animal fighting contest.” An animal fighting
contest refers to an organized and intentional “conflict between two (2) or more animals.”
I.C. § 35-46-3-4. To convict Clemons, the State would need to prove beyond a
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reasonable doubt that he knowingly or intentionally purchased or possessed an animal for
the purpose of an animal fighting contest. See I.C. § 35-46-3-8.
The evidence overwhelmingly establishes that Clemons ran a cockfighting
operation. Clemons admitted possession of the 193 birds found on his farm. The gender
ratio was two or three roosters for every hen. Goodwin testified that this was indicative
of a cockfighting operation. Several State witnesses testified that dubbing is a common
practice in cockfighting as the wattles and combs bleed profusely when attacked. A
majority of Clemons’ roosters had been dubbed, yet none of his hens were dubbed.
Approximately fifty roosters were tethered to cages with feed and water placed on top of
barrels. Goodwin explained that food and water were kept at this height to condition the
roosters for fighting. A number of roosters were found with shortened spurs thereby
allowing for weapon to be fitted to their legs. Numerous medicines and dietary
supplements were found which could be used to strengthen the birds. Finally, IGC
officers found cockfighting magazines, training regimens, and grooming tools. In sum,
all of the foregoing evidence was sufficient to sustain Clemons’ conviction for possessing
an animal for the purpose of using the animal in an animal fighting contest.
Clemons argues that there was no evidence that he actually participated in
cockfighting and there was “no probative evidence that [he] had these animals on his
farm to fight.” (Appellant’s Br. p. 13). This argument is disingenuous. Although
attempting to pass himself off as merely a breeder, Clemons is an acknowledged
“Christian cocker” whose duty in life is to “breed, to raise, and to fight” game fowl.
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(Appellant’s App. p. 159). The Pit Games magazine contained his advice for breeding
champion battle cocks. He admitted selling birds to others, and admitted that he did not
know what they would do with them. Clemons estimated that 95% of his birds sold to
American customers were used for show, thereby implying that the remaining five
percent were used for other purposes. Moreover, Clemons admitted that he had no show
birds on his farm because an “absolutely perfect specimen” was required for a rooster to
be a show bird. (Tr. p. 396).
Furthermore, when persons inquired about purchasing battle cocks, Clemons
responded that he had brood stock and would sell them a rooster accompanied by two
hens. Goodwin testified that Clemons’ sale of battle tested cockfighting bloodlines by
definition requires the use of birds that have engaged in cockfighting. Although Clemons
explained that his birds were tethered to prevent them from attacking other birds, given
medicines to restore health, and dubbed to protect the birds from cold water, these
explanations are equally consistent with the grooming and training of battle cocks and
operating a cockfighting operation. In sum, Clemons’ arguments are simply requests to
judge the credibility of the witnesses and reweigh the evidence, which we will not do.
See Perez, 872 N.E.2d at 213.
III. Possession of Animal Fighting Paraphernalia
Clemons next challenges his conviction for possession of animal fighting
paraphernalia. Although he acknowledges ownership of the Filipino knife found on his
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property, Clemons disputes that the State proved beyond a reasonable doubt that he
possessed it with the intent to commit an animal fighting contest violation. We disagree.
Animal fighting paraphernalia includes equipment used to train or condition
animals for participation in an animal fighting contest. I.C. § 35-46-3-4.3. Knowingly or
intentionally possessing such paraphernalia with the intent to violate I.C. § 35-46-3-9 is a
Class B misdemeanor. I.C. § 35-46-3-8.5. Pursuant to I.C. § 35-46-3-9, an animal
fighting violation consists of the knowing or intentional (1) promotion or staging of an
animal fighting contest; (2) use of an animal in an animal fighting contest; or (3)
attendance at an animal fighting contest with an animal one’s possession. See T.J. v.
State, 932 N.E.2d 192, 193 (Ind. Ct. App. 2010). Thus, to convict Clemons, the State
was required to show that Clemons knowingly or intentionally possessed the animal
fighting paraphernalia with the intent to commit an animal fighting contest violation. See
I.C. § 35-46-3-8.5.
Clemons argues that the evidence is insufficient to sustain his conviction because
the State did not prove that he had the intent to violate I.C. § 35-46-3-9. Intent involves a
person’s state of mind, and the fact finder can “infer its existence from surrounding
circumstances when determining whether the requisite intent exists.” Goodner v. State,
685 N.E.2d 1058, 1062 (Ind. 1997). At trial, Clemons identified the knife as an article
used in cockfighting contests and admitted that it was his. IGC officers also found
numerous items on Clemons’ property that Officer Bolin later testified were consistent
with use in cockfighting. In addition to the Filipino knife, these included dubbing shears,
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medicines and supplements, cockfighting training manuals, videos and periodicals, as
well as exercise equipment. Although Clemons maintains that he had never intended to
use the knife in a cockfight, it was reasonable for the jury to disbelieve him and infer that
the knife and the other, numerous items of paraphernalia were in fact intended to be used
in violation of I.C. § 35-46-3-9. We therefore affirm Clemons’ conviction.
IV. Promoting an Animal Fighting Contest
Finally, Clemons challenges the sufficiency of the evidence to support his
conviction for promoting an animal fighting contest. He argues that the State failed to
present sufficient evidence beyond a reasonable doubt to sustain his conviction for
promoting an animal fighting contest because he did not possess the Filipino knife with
the requisite intent and there was no indication “that he was training any of these birds to
participate in an animal fighting contest.” (Appellant’s Br. p. 16).
Under I.C. § 35-46-3-9.5, a person promotes an animal fighting contest if he: a)
possesses animal fighting paraphernalia with the intent to violate I.C. § 35-46-3-9; and b)
“possesses, harbors, or trains” an animal that bears scars, wounds, or injuries “consistent
with participation in or training for an animal fighting contest.” We have already
concluded that Clemons possessed animal fighting paraphernalia with the intent to violate
I.C. § 35-46-3-9. In addition, there is sufficient evidence to show that Clemons
possessed, harbored, and trained roosters bearing scars, wounds, or injuries consistent
with participation or training for an animal fighting contest.
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IGC officers located several roosters with their spurs, wattles, and comb shortened
or removed – all of which left a mark or scar on the bird. Dubbing is a common practice
in cockfighting. Clemons, who treated his birds without the assistance of a veterinarian,
had vitamins and medications he provided to the birds that “might be used in
cockfighting” or that “have an application in cockfighting.” (Tr. p. 395). Although
Clemons points out that no treadmills, exercise wheels, or sparring equipment was found
on the farm, the jury heard evidence on how the roosters were tethered to barrels and
made to jump up to reach their food. In sum, Clemons has invited us to reweigh the
evidence but we decline to do so. See Perez, 872 N.E.2d at 213. Here, there was
evidence more than sufficient for the jury to conclude beyond a reasonable doubt that
Clemons promoted an animal fighting contest.
CONCLUSION
Based on the foregoing, we conclude that the State presented sufficient evidence
to support Clemons’ convictions for possession of an animal for purposes of an animal
fighting contest, possession of animal fighting paraphernalia, and for promoting an
animal fighting contest.
Affirmed.
BAKER, J. and BARNES, J. concur
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