B.B., Jr. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 17, 2013
• Docket: 45A03-1205-JV-228
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED Jan 17 2013, 9:25 am court except for the purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JAMES L. CLEMENT, JR. GREGORY F. ZOELLER Lucas, Holcomb & Medrea, LLP Attorney General of Indiana Merrillville, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

B.B., JR., ) ) Appellant-Respondent, ) ) vs. ) No. 45A03-1205-JV-228 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Mary Beth Bonaventura, Judge The Honorable Jeffrey Miller, Magistrate Cause No. 45D06-1103-JD-285

January 17, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge B.B., Jr. appeals his adjudication as a juvenile delinquent for having committed

cruelty to an animal,1 a Class A misdemeanor if committed by an adult, contending that

the evidence was insufficient to support the adjudication.

We affirm.

FACTS AND PROCEDURAL HISTORY

In February 2011, ten-year-old B.B. lived in Griffith, Indiana with his mother, his

younger sister, a Poodle-Shih Tzu dog named Cupcake, and Cupcake’s two puppies.

Around 7:30 a.m. on February 18, B.B. and his younger sister were outside with Cupcake

and the puppies. The day was cold, there was snow on the ground, and the puppies, who

were nine-weeks old and quite small, had been outside only once before.

At the hearing on B.B.’s delinquency adjudication, Tammy Stupar (“Stupar”) and

Sharon Miller (“Miller”), neighbors who lived next door and across the street,

respectively, from B.B.’s family, testified that B.B. picked up the puppies and threw them

into puddles of water and ice, and that he put the puppies in a tall kitchen garbage can

and kicked the can off the front porch. Tr. at 8, 13-15, 21-22, 39. Stupar testified that

she saw B.B. kick the puppies off a porch, and that he threw the puppies onto the ground

with enough force that their yelping could be heard through closed windows. Stupar

called Lake County Animal Control (“Animal Control”), and while it took some time

before her call was answered, a representative from Animal Control finally arrived and

seized Cupcake and the two puppies.

1 See Ind. Code § 35-46-3-12(b).

2 On April 7, 2011, the trial court authorized the State to file a petition alleging B.B.

was a delinquent child. The petition was based upon allegations that B.B. violated

Indiana Code section 35-46-3-12(b), which provides: “A person who knowingly or

intentionally beats a vertebrate animal commits cruelty to an animal, a Class A

misdemeanor.” An initial hearing was held on May 24, 2011. On July 21, 2011, the trial

court entered an order that the puppies be released for adoption and that Cupcake be

released to B.B.’s mother upon payment of $1,569 to the Animal Shelter. This amount

represented the $10 per day boarding charge, plus other expenses incurred by the shelter

in caring for Cupcake.

Following B.B.’s adjudication hearing on August 30, 2011, the matter was taken

under advisement. On October 19, 2011, the juvenile court entered an order finding that

the State had proven beyond a reasonable doubt that B.B. was a delinquent child. On

January 7, 2012, the juvenile court entered its disposition order on the delinquency

adjudication. On May 15, 2012, B.B filed his notice of appeal. This court ordered B.B.

to file an amended notice of appeal within thirty days under the new Case No. 45A03-

1205-JV-228. Having filed an amended notice of appeal, B.B. now appeals. Additional

facts will be added as needed.

DISCUSSION AND DECISION

B.B. contends that the evidence was insufficient to convict him of cruelty to an

animal. Specifically, B.B. contends that the State failed to prove beyond a reasonable

doubt that he knowingly or intentionally beat a puppy. To support B.B.’s true finding

adjudicating B.B. “delinquent for having committed . . . cruelty to an animal (I.C. 35-46-

3 3-12),” the State had to prove that B.B. “knowingly or intentionally beat[] a vertebrate

animal.” Appellee’s Br. at 5 (citing Ind. Code § 35-46-3-12(b)); Appellant’s App. at 12.

For purposes of Indiana Code section 35-46-3-12, “beat” means “to unnecessarily or

cruelly strike an animal, or to throw the animal against an object causing the animal to

suffer severe pain or injury.”2 Ind. Code § 35-46-3-0.5. Here, the State was required to

prove beyond a reasonable doubt that B.B. knowingly or intentionally unnecessarily or

cruelly struck a puppy, or threw a puppy against an object causing the puppy to suffer

severe pain or injury. Ind. Code § 35-46-3-12(b).

The deferential standard of review for sufficiency claims is well settled. Duncan

v. State, 975 N.E.2d 838, 845 (Ind. Ct. App. 2012). We do not reweigh the evidence or

assess the credibility of the witnesses. Id. “Rather, we will consider only the evidence

and reasonable inferences most favorable to the trial court’s ruling, and we will affirm

unless ‘ “no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt.” ’ ” Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009) (citing

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quoting Jenkins v. State, 726 N.E.2d

268, 270 (Ind. 2000))), trans. denied. Stupar testified that as she looked out her window

she saw B.B. pick up the puppies and throw them into puddles of water and ice. Tr. at 8.

She also testified that she saw B.B. put the puppies in a tall kitchen garbage can at the

edge of the front porch and kick the can off the porch with the puppies in it. Id. B.B. put

the puppies in the garbage can and threw snowballs at them. Id. During the adjudication

2 It is a defense to a charge of cruelty to animals that the defendant was engaging in or using reasonable training or disciplinary techniques. Ind. Code § 35-46-3-12(e)(2). Here, B.B. has raised no such defense.

4 hearing, Stupar was asked whether she saw B.B. strike any of the three animals or throw

them against an object causing them to suffer severe pain or injury. Id. at 15. Stupar

responded that she saw B.B. “kicking [the puppies] off the porch,” and that, from inside

her house, she could hear the puppies “yelping.” Id. Stupar admitted that she did not call

out to B.B. to stop, but instead she called Animal Control. Id. at 15. Stupar testified that

she watched B.B. with the dogs for about an hour and a half. Id. at 9. Miller testified

that she saw B.B. pick up one of the puppies and throw it. Id. at 21. She also said that

she saw B.B. repeatedly throw snowballs at the puppies while they were on the ground

and also while they were inside the garbage can. Id. Miller said that she watched for

about fifteen or twenty minutes, at which time Animal Control arrived. Id. at 22. From

this evidence, the trial court adjudicated B.B. to be a delinquent. Viewed consistently

with our standard of review, the evidence is sufficient to affirm B.B.’s adjudication as a

delinquent for having committed cruelty to an animal.

Affirmed.

MATHIAS, J., and CRONE, J., concur.