Boss v. State

944 N.E.2d 16, 2011 Ind. App. LEXIS 217, 2011 WL 576085
CourtIndiana Court of Appeals
DecidedFebruary 18, 2011
Docket49A02-1002-CR-225
StatusPublished
Cited by8 cases

This text of 944 N.E.2d 16 (Boss v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boss v. State, 944 N.E.2d 16, 2011 Ind. App. LEXIS 217, 2011 WL 576085 (Ind. Ct. App. 2011).

Opinions

OPINION

FRIEDLANDER, Judge.

Carolyn Boss brings this interlocutory appeal challenging the trial court’s denial of her motion to dismiss the charging information on double jeopardy grounds. Boss presents one issue for our review: Did the trial court properly deny Boss’s motion to dismiss the charging information when it concluded that the enforcement of various city ordinances did not constitute punishment and that the current prosecu[19]*19tion was therefore not a second prosecution for the same offense?

We affirm.

Because no trial has yet occurred, we glean the facts from the probable cause affidavit. Boss maintained three dogs on her property.1 Carrolle Bales was walking in an alley near Boss’s property when the dogs attacked her. One of the dogs latched onto Bales’s left arm and the other two dogs bit her legs until she fell to the ground. The dogs continued to maul Bales until her friend, Thomas Wimberly, arrived to assist her. At that point, the dogs turned on Wimberly. Boss was unaware that the dogs had gotten out of the yard until a stranger knocked on her door and informed her that her dogs were attacking people in the alley. Boss went outside and was able to confine the dogs. Both Bales and Wimberly suffered serious bodily injury to their upper and lower extremities. After the attack, Boss could not provide proof of rabies vaccinations for the dogs. Also, officers responding to the attack noted that there was inadequate shelter for two of the dogs and that one of the dogs was inappropriately chained.

On November 8, 2008, the City of Indianapolis issued Boss five citations for each of the dogs, resulting in a total of fifteen citations for ordinance violations. On December 15, 2008, Boss admitted to twelve of the fifteen violations and the remaining three allegations were dismissed. The specific ordinances that Boss admitted violating follow:

Sec. 531-102. — Animals at large prohibited; penalties.
(a) It shall be unlawful for the owner or keeper of an animal to cause, suffer, or allow that animal which is owned or kept by such person to be at large in the city. * * *
(c) If, while the animal is at large in violation of this section at a location other than its owner’s or keeper’s property or in the public right-of-way, it:
(1) Attacks another animal; or
(2) Chases or approaches a person in a menacing fashion or apparent attitude of attack;
then the violation shall be subject to the enforcement procedures and penalties provided in section 103-3[2] of the Code, and the fine imposed shall not be less than two hundred and fifty dollars ($250.00), or five hundred dollars ($500.00) if another animal or person is [20]*20injured as a result of the animal’s actions.

Appellant’s Appendix at 94.3

Sec. 531-109. — Owner responsibility for animal attacks.

(a) It shall be unlawful for an owner or keeper of an animal to allow that animal to attack and injure a person who did not provoke the animal prior to the attack....
* ⅜ *
(c) A person who violates any provision of this section shall be punishable as provided in section 103-3 of this' Code; provided, however, a fine imposed for any such violation shall not be less than five hundred dollars ($500.00). If the violation results in the animal causing serious injury to any person, the court upon request shall order the animal forfeited and/or destroyed.

Id. at 95 (emphasis supplied).4

Sec. 531-301.- — Antirabies vaccinations required for dogs and cats.
(a) It shall be unlawful to keep a dog or cat over the age of three (3) months in the city unless each cat or dog is immunized against rabies by a vaccination performed by a veterinarian and the period of immunization specified by the veterinarian performing the vaccination has not expired.
(b) A violation of this section shall be punishable as provided in section 103-3 of this Code; provided, however, the fine for any such violation shall not be less than one hundred dollars ($100.00).

Id. at 96 (emphasis supplied).5

Sec. 531^101 (a) sets forth the general requirements for animal care and treatment and mandates that “[ejvery owner or keeper of an animal kept in the city shall see that such animal” is cared for and treated in accordance with the provisions contained therein. Id. at 97.6 Subsection (d) spells out the ramifications for a violation thereof:

A person who violates any provision of this section shall be punishable as provided in section 103-3 of this Code; provided, however, the fines imposed for any such violations shall be as follows:
(1) For the first violation, not less than twenty-five dollars ($25.00); and
(2) For the second or subsequent violations, not less than two hundred dollars ($200.00), and the court upon request shall order forfeiture or other disposition of the animal involved. A judgment by the court which orders forfeiture or other disposition of the animal by the city or any thud party shall include as a part of such judgment adequate provisions for the collection of costs of forfeiture or im-poundment from the person found in violation.

Id. at 97-98 (emphasis supplied).7

Following Boss’s admissions to the violations, the court imposed fines totaling $1150.00 and court costs of $114.00. Addi[21]*21tionally, Boss voluntarily surrendered the three dogs to the City of Indianapolis and agreed “to be permanently enjoined from allowing an animal kept by her to be at large in the city or to attack and injure a person without being provoked” and “to be permanently enjoined from violating [§ ] 531-401...Appellant’s Appendix at 91-92.

On December 8, 2008, the State charged Boss by information with six counts of dog biting resulting in serious bodily injury8 as class A misdemeanors and six counts of harboring a non-immunized dog9 as class B misdemeanors. The charges stemmed from the same incident involving Boss’s dogs from which the ordinance violations arose. On July 16, 2009, Boss filed a verified motion to dismiss the charging information on grounds that the prosecution was barred by double jeopardy principles. The State objected to Boss’s motion to dismiss and the trial court held a hearing on Boss’s motion on November 1, 2009. The trial court denied Boss’s motion to dismiss, concluding that the ordinance enforcement proceedings were civil in nature and therefore, the present prosecution did not violate double jeopardy principles. Following its decision, the trial court granted Boss’s request to certify the issue for interlocutory review. On April 12, 2010, this court granted Boss’s motion to accept jurisdiction over this interlocutory appeal.

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Boss v. State
944 N.E.2d 16 (Indiana Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
944 N.E.2d 16, 2011 Ind. App. LEXIS 217, 2011 WL 576085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boss-v-state-indctapp-2011.