Pursuant to Ind. Appellate Rule 65(D), 

this 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.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

GARY L. GRINER GREGORY F. ZOELLER

Mishawaka, Indiana Attorney General of Indiana

ANN L. GOODWIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

GERALD MCKINNEY, )

)

Appellant-Defendant, )

)

vs. ) No. 71A04-1108-CR-450

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

The Honorable Jane Woodward Miller, Judge 

Cause No. 71D01-1010-FD-980

March 30, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
2

STATEMENT OF THE CASE

Gerald McKinney appeals his conviction for class A misdemeanor animal cruelty.1

We affirm.

ISSUES

1. Whether the trial court abused its discretion in admitting evidence.

2. Whether the trial court abused its discretion in instructing the jury.

3. Whether there is sufficient evidence to support the conviction.

FACTS

On August 14, 2010, then-thirteen-year-old DeShawn Luten was home with his 

then-fifteen-year-old brother, Lamar, and several friends. The boys‟ mother, Danielle 

Luten, was at work. At some point, the family‟s dog, a pit bull, got out of his crate, 

which was inside the house, and bit DeShawn. When the children could not get him back 

in the crate, Mrs. Luten came home from work and put him back in the crate. 

Subsequently, the dog again escaped his crate. The children ran out of the house, 

leaving the dog inside the house. After the children telephoned their mother, she 

telephoned her boyfriend, McKinney, and asked him to get the dog out of the house. 

Eventually, McKinney and DeShawn‟s oldest brother, Joseph, chased the dog outside, 

into the fenced backyard, where DeShawn saw Joseph strike the dog once. He thought 

Joseph had hit the dog with a shovel.

 

1

 Ind. Code § 35-46-3-12.
3

That evening, South Bend Police Officer Chadwick Goben responded to a report 

that a dog had been beaten at the Luten residence. As Officer Goben spoke with Joseph, 

who was on the telephone with Ms. Luten, he observed “several people running around 

the house.” (Tr. 170). In his experience, it appeared to him that they were hiding or 

hiding something.

Joseph told Officer Goben that Ms. Luten would like to speak to him. Officer 

Goben informed her that he was responding to a call regarding “loud screaming and 

yelling” at the house. (Tr. 170). Ms. Luten gave Officer Goben permission to enter the 

residence and “make sure that everybody was okay[.]” (Tr. 171). 

While staying on the phone with Ms. Luten, Officer Goben entered the house and 

asked Joseph to bring everyone into the living room. Approximately eight people 

gathered in the living room; they all appeared to be in their teens, or “at the most, 20.” 

(Tr. 174).

Officer Goben asked Ms. Luten whether the family had a dog. She responded that 

they did, “but earlier in the day she received a phone call from her children saying that 

the dog ran away . . . .” (Tr. 172). Officer Goben then walked through the house, 

checking to see if anyone else was there. When he entered a bedroom, he observed 

McKinney on the bed; McKinney appeared to be sleeping. 

Without disturbing McKinney, Officer Goben continued through the house and 

into the backyard, where he observed a shovel next to a mound of dirt and a hole, which 

appeared to be freshly dug. He also observed a blanket on the ground. He noticed that 
4

the blanket was “moving up and down as if something was underneath it.” (Tr. 173). 

Officer Goben discovered a dog lying under the blanket. The dog appeared to have been 

beaten about the head. Officer Goben also noticed a baseball bat lying in the yard. The 

bat had what appeared to be blood on it.

Officer Goben, who had remained on the phone with Ms. Luten, informed her that 

“there was an issue at her residence, and she needed to come home from work . . . .” (Tr. 

177). He told her that he would stay at the house until she arrived. Officer Goben then 

had dispatch contact Animal Care and Control.

Because McKinney appeared to be the oldest occupant in the house, Officer 

Goben went back inside the house and woke him. Officer Goben told him “what [he] 

was doing there, and the fact that [he] had spoken with Ms. Luten and what [he] had 

found in the back yard, and [he] needed to gather everybody up and find out what was 

going on and why the dog was in the back yard.” (Tr. 178). McKinney agreed to help.

By this time, other officers had arrived. With everyone gathered in the living 

room, Officer Goben “asked them why the dog was like that.” (Tr. 181). Everyone 

denied knowing anything about the dog‟s condition. After McKinney encouraged the 

teenagers to tell the truth, Joseph explained that the dog “had escaped from its cage and 

started attacking his younger brother, DeShawn. At that point in time, everybody ran out 

of the house.” (Tr. 182). 

Animal Control Officer Charles LeMaire arrived approximately thirty minutes 

later. An officer immediately took him to the dog in the backyard. LeMaire observed 
5

that the dog‟s breathing was labored. He also observed that the dog “was covered in 

blood. Its eye was popped out of its socket and hanging down about a half inch to an 

inch below the eye socket. The skull appeared crushed. The jaw appeared broken 

completely on both sides, and it was hanging loose[.]” (Tr. 203). LeMaire sedated the 

dog and then checked it for other broken bones. When he turned the dog over, he 

discovered a second baseball bat, with what appeared to be blood on it, underneath the 

dog. After performing a cursory examination of the dog, LeMaire carried the dog to his 

truck. LeMaire subsequently determined that the dog‟s injuries necessitated it being 

euthanized. 

After taking the dog to his truck, LeMaire returned to the residence, where he 

found several people, including McKinney, Ms. Luten, and Lamar, congregated in the 

kitchen. When Lamar denied knowing what had happened to the dog, LeMaire indicated 

that he believed Lamar was lying and told him he “need[ed] to tell [them] who hit that 

dog.” (Tr. 211). Lamar then pointed to McKinney “and he said to him directly, you did 

it.” (Tr. 213). When McKinney acted surprised and questioned, “I do [sic] it?” (Tr. 

213). Lamar answered, “yeah, you beat that dog down.” (Tr. 213). LeMaire therefore 

asked McKinney whether he had hit the dog. McKinney admitted that he “did it.” (Tr. 

232). McKinney explained that he hit the dog with a baseball bat when the dog charged

him while inside the house. LeMaire indicated that “that‟s fine” because McKinney was 

protecting himself and then asked Lamar who hit the dog in the backyard. (Tr. 233). 
6

Lamar “looked directly at Mr. McKinney and said, you beat the dog down in the 

back yard.” (Tr. 233). McKinney “said, in the same surprised tone of voice and 

mannerism, I did it in the back yard?” (Tr. 234). Lamar responded, “yeah, you did it.” 

(Tr. 234). When LeMaire asked McKinney whether that was true, McKinney answered, 

“yeah, I did it in the back yard.” (Tr. 234). 

During LeMaire‟s conversation with Lamar and McKinney, Officer Goben stood

in the doorway between the kitchen and living room but did not ask any questions of 

McKinney. The police officers were at the residence a “couple hours” and made no 

arrest that evening. (Tr. 187). 

On October 1, 2010, the State charged McKinney with Count 1, class D felony 

mutilating an animal; and Count 2, class A misdemeanor animal cruelty. On January 6, 

2011, McKinney, by counsel, filed a motion to suppress his statements to LeMaire. The 

trial court held a hearing on the motion, during which the State conceded that LeMaire 

was acting as an agent for the State on August 14, 2010. The trial court denied the 

motion.

The trial court commenced a two-day trial on June 23, 2011, during which the trial 

court admitted into evidence, over McKinney‟s objection, LeMaire‟s testimony regarding

McKinney‟s admissions. The jury found McKinney not guilty of mutilating an animal 

and guilty of class A misdemeanor animal cruelty. The trial court held a sentencing 

hearing on July 22, 20100, after which the trial court sentenced McKinney to one year.

Additional facts will be provided as necessary.
7

DECISION

1. Admission of Evidence

McKinney asserts that the trial court improperly admitted his statements to 

LeMaire because the statements were made without Miranda warnings. Specifically, 

McKinney argues that he was in custody when he made his statements because he was 

not free to leave.

The admission or exclusion of evidence is a matter left to the sound discretion of 

the trial court. Terry v. State, 857 N.E.2d 396, 409 (Ind. Ct. App. 2006), trans. denied. 

On review, we will not reweigh the evidence. Id. “Instead, we will consider all 

conflicting evidence in favor of the trial court‟s ruling, and only the uncontested evidence 

favorable to the defendant.” Id. 

Miranda warnings are based upon the Fifth Amendment‟s privilege against selfincrimination, and were designed to protect an individual from being compelled to testify 

against himself. Gibson v. State, 733 N.E.2d 945, 952 (Ind. Ct. App. 2000). Police 

officers are not required to give a defendant a Miranda warning unless the defendant is in 

custody and subject to interrogation. Id. “Police cannot avoid their duty under Miranda

by attempting to have someone act as their agent in order to bypass the Miranda

requirements.” S.G. v. State, 956 N.E.2d 668, 680 (Ind. Ct. App. 2011).

A person is deemed to be in custody if a reasonable person in the 

same circumstances would not feel free to leave. Whether a person was in 

custody depends upon objective circumstances, not upon the subjective 

views of the interrogating officers or the subject being questioned. In 
8

determining whether an individual was in custody, a court must examine all 

of the circumstances surrounding the interrogation, but “the ultimate 

inquiry is simply whether there [was] a „formal arrest or restraint on 

freedom of movement‟ of the degree associated with a formal arrest.” 

Gauvin v. State, 878 N.E.2d 515, 520-21 (Ind. Ct. App. 2007) (internal citations omitted), 

trans. denied. Among the factors determined to be significant in determining whether a 

person is in custody are the following: 

whether and to what extent the person has been made aware that he is free 

to refrain from answering questions; whether there has been prolonged 

coercive, and accusatory questioning, or whether police have employed 

subterfuge in order to induce self-incrimination; the degree of police 

control over the environment in which the interrogation takes place, and in 

particular whether the suspect‟s freedom of movement is physically 

restrained or otherwise significantly curtailed; and whether the suspect 

could reasonably believe that he has the right to interrupt prolonged 

questioning by leaving the scene.

Id. at 521 (quoting Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996), cert. denied, 519 

U.S. 854 (1996)).

Here, Mrs. Luten gave the police officers permission to enter the home; the police 

officers stood apart from everyone in the kitchen while LeMaire spoke with several 

people, including McKinney; LeMaire did not make McKinney the sole object of his 

inquiries; the police officers in no way physically restrained McKinney or curtailed his 

movement; LeMaire did not subject McKinney to accusatory questioning; and LeMaire 

only inquire into the truth of Lamar‟s statements.
9

We cannot say that the facts support a conclusion that McKinney was in custody 

when LeMaire questioned him. According, we find no abuse of discretion in admitting 

McKinney‟s statements to LeMaire.

2. Jury Instructions

McKinney asserts that the trial court abused its discretion in instructing the jury on 

accomplice liability. He argues that “there was no evidence in the record to support such 

an instruction.” McKinney‟s Br. at 9.

“The purpose of an instruction is to inform the jury of the law applicable to 

the facts without misleading the jury and to enable it to comprehend the 

case clearly and arrive at a just, fair, and correct verdict.” “Instruction of 

the jury is generally within the discretion of the trial court and is reviewed 

only for an abuse of that discretion.” “In reviewing a trial court‟s decision 

to give or refuse tendered jury instructions,” this Court “considers: (1) 

whether the instruction correctly states the law; (2) whether there is 

evidence in the record to support the giving of the instruction; and (3) 

whether the substance of the tendered instruction is covered by other 

instructions which are given.”

Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005) (internal citations omitted), 

trans. denied.

The pertinent instructions read as follows:

The crime of cruelty to an animal is defined by law as follows:

A person who knowingly or intentionally beats a vertebrate animal commits 

cruelty to an animal, a Class A misdemeanor.

Before you may convict the Defendant of cruelty to an animal, a Class A 

misdemeanor, the State must have proved each of the following beyond a 

reasonable doubt:
10

1. The defendant, Gerald McKinney

2. knowingly

3. beat

4. a vertebrate animal, to wit: a dog[.]

If the State failed to prove each of these elements beyond a reasonable 

doubt, you must find the defendant not guilty of cruelty to an animal, a 

Class A misdemeanor . . . .

If the State did prove each of these elements beyond a reasonable

doubt, you may find the defendant guilty of cruelty to a vertebrate animal, a 

class A misdemeanor . . . .

(App. 31).

A person who knowingly or intentionally aids, induces, or causes another 

person to commit an offense commits that offense, even if the other person:

1. has not been prosecuted for the offense;

2. has not been convicted of the offense; or

3. has been acquitted of the offense.

The acts of one person are attributable to all who are knowingly or 

intentionally acting together during the commission of a crime. 

Accordingly, although the State need not prove, beyond a reasonable doubt, 

that the defendant personally, and acting by himself, committed all of the 

elements of the crime with which he is charged, the State must prove, 

beyond a reasonable doubt that the defendant engaged in some affirmative 

conduct aiding, inducing, or causing another person to commit the charged 

offense and the defendant and another person or persons, knowingly or 

intentionally acting together, committed all of the elements of the crime 

with which the defendant is charged.

(App. 34).

Under the theory of accomplice liability, an individual who aids, induces, or 

causes the commission of a crime is equally as culpable as the person who actually 

commits the offense. I.C. § 35–41–2–4.
11

The accomplice liability statute does not set forth a separate crime, but 

merely provides a separate basis of liability for the crime that is charged. 

Therefore, where the circumstances of the case raise a reasonable inference 

that the defendant acted as an accomplice, it is appropriate to instruct the 

jury on accomplice liability even where the defendant was charged as a 

principal. “While the defendant‟s presence during the commission of the 

crime or the failure to oppose the crime are, by themselves, insufficient to 

establish accomplice liability, they may be considered along with other 

facts and circumstances tending to show participation.”

Brooks v. State, 895 N.E.2d 130, 133 (Ind. Ct. App. 2008) (internal citations omitted).

The record reveals that McKinney and Joseph chased the dog through the house 

and into the yard. Officers found two bloody baseball bats lying in the yard, near the 

dog, which had beaten. DeShawn testified that he saw Joseph hit the dog. McKinney 

admitted to striking the dog both inside and outside the house.

The State presented sufficient evidence from which the jury could infer that 

McKinney and Joseph acted together in beating the dog. Given that the evidence 

supports the instruction on accomplice liability, we cannot say that the trial court abused 

its discretion by giving this instruction.

3. Sufficiency of the Evidence

McKinney asserts that the evidence is insufficient to support his conviction. 

When reviewing the sufficiency of the evidence to support a conviction, 

appellate courts must consider only the probative evidence and reasonable 

inferences supporting the verdict. It is the fact-finder‟s role, not that of 

appellate courts, to assess witness credibility and weigh the evidence to 

determine whether it is sufficient to support a conviction. To preserve this 

structure, when appellate courts are confronted with conflicting evidence, 

they must consider it most favorably to the trial court‟s ruling. Appellate 

courts affirm the conviction unless no reasonable fact-finder could find the 

elements of the crime proven beyond a reasonable doubt. It is therefore not 
12

necessary that the evidence overcome every reasonable hypothesis of 

innocence. The evidence is sufficient if an inference may reasonably be 

drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted).

Indiana Code section 35-46-3-12(b) provides that “[a] person who knowingly or 

intentionally beats a vertebrate animal commits cruelty to an animal[.]” “Beat” is defined 

as “to unnecessarily or cruelly strike an animal, or to throw the animal against an object 

causing the animal to suffer severe pain or injury.” I.C. § 35–46–3–0.5(2). “[U]nder the 

statute, a person „beats‟ a vertebrate animal when he needlessly strikes an animal or 

strikes an animal so as to cause pain or suffering.” Tooley v. State, 911 N.E.2d 721, 724 

(Ind. Ct. App. 2009), trans. denied.

DeShawn testified that McKinney chased the dog until it went outside. Once 

outside, the dog no longer posed a threat to anyone inside the house. Instead of leaving 

the dog, however, McKinney admittedly struck the dog. The dog suffered extensive 

injuries consistent with being struck multiple times. The dog‟s injuries included a 

crushed skull, broken jaw and a displaced eyeball. Officers later discovered two bloody 

baseball bats in the yard. 

Given these facts, the jury could reasonably infer that McKinney needlessly struck 

the dog or did so in a manner so as to cause pain and suffering to the dog. McKinney is 

asking this Court to reweigh the evidence, which we will not do.

Affirmed.

BAKER, J., and BAILEY, J., concur.