## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : SAMUEL J. BEASLEY GREGORY F. ZOELLER Muncie, Indiana Attorney General of Indiana CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

RAHSAAN A. JOHNSON , ) ) Appellant

- Defendant, ) ) vs. ) No. 18A02

- 1304

- CR

- 343 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Marianne L. Vorhees , Judge Cause No. 18C01

- 1204

- FD

- 88

M ay 7, 2014 OPINION
- FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant, Rahsaan A. Johnson (Johnson), appeals his conviction of fourteen Counts of possessi on of animal s for fighting contest s , Class D felonies, Ind. Code § 35

- 46

- 3

- 8.
We affirm. ISSUE S Johnson raises two issues on appeal, which we restate as follows: (1) Whether there is sufficient evidence beyond a reasonable doubt to support Johnson’s conviction of possession of animals for fighting contests; and (2) Whether Johnson’s conviction of fourteen Counts of possession of animals for fighting contests violates the double jeopardy clau se of the Indiana Constitution.

FACTS AND PROCEDURAL HISTORY 1
On March 19 , 2012, two crates were shipped from the Dominic an Republic an d arrived at the Indianapolis International Airport a day later . The importer , Johnson, traveled from his home in Muncie, Indiana to Indianapolis to pick up his cargo from the Customs Office. Insi de of each crate was a live dog . A Customs agent noticed that the dogs were covered in bite marks and scars and were clearly in very poor health , so a s Johnson waited for Cus toms to clear his shipment, the Customs agent contacted Homeland Security Investigations and the Animal Plant He alth Inspection Service

. Both agencies

1 We note that nearly every citation to the Transcript in Johnson’s appellate brief is incorrect. It is an inefficient use of this court’s resources to search through more than 1300 pages to locate the referenced information.3

declined to inve stigate the matter , so the Customs agent requested assistance from the Indianapolis Airport Police

. Johnson explained that the dogs were family pets , and although Customs eventually released the dogs to Johnson, the Assistant Chief of the Airport Police contacted the Muncie Police Department to report his observations and concerns about Johnson’s dog s . Approximately one week later, o n March 28 , 2012 , the Muncie Animal Shelter (Shelter) received a repo rt from the City Building Commissioner of dogs barking from inside an apparently abandoned trailer located at 2 407 N orth Blaine Street . The next day, the Shelter’s superintendent, Phil lip Peckinpaugh (Peckinpaugh), went to the reported address to investigate the complaint. When Peckinpaugh arrived at the mobile home, it appeared that nobody was ther e . Through a dilapidated fence, Peckinpaugh observed six dogs chained up in the back yard . In a ddition to the heavy tow chains restraining the dog s, Peckinpaugh noticed that most of the dogs had s evere scarring on their faces, o n e w as tangled up and unable to move, and none had any food or water. Peckinpaugh also heard the sounds of other dogs coming from inside the garage and the residence. At th is point, he called the Muncie Police Department

. The police officers arrived on scene and, after observing the exterior of the property and speaking with Peckinpaugh, obtained a warrant to search the mobile home. Once inside, Peckinpaugh and the police officers were greeted by the “overpowering” scent of “feces and urine.” (Transcript p. 468). The trailer, which did not have running water, was in shambles. In each room of the narrow mobile home , Peckinpaugh and the officers discovered dog cages stacke d and crammed into every4

available space. M ost of the plastic and metal cages housed a dog, but other broken cages were also strewn about the filthy house and yard

. While t here were bowls stashed on top of some of the dog cages, none of the animals had any food or water . The cages, some of which were too small to accommodate the dog living inside of it, were lined with soiled
newspapers. Likewise, the garage was filled with caged dogs. After Peckinpaugh and the other Shelter employees removed the dogs from the premises , the police officers further investigate d the scene

. T hey seized twenty

- two plastic and metal cages; t hree treadmills designed or modified for dog use; multiple harnesses, leads, cloth and leather muzzles, and weighted collars; and vari ous containers and buckets of pet care products and supplements, including Penicillin, wound ointment, Epsom salt, iron supplements, vitamins, weight boosting supplements , and syringes

. From the mail found inside the residence, the police officers ascertain ed that the trailer belonged to Johnson. Johnson, who did not live in the mobile home, had leased the property for $200 per month for the sole purpose of quartering his dogs. 2 Despite the lease agreement’s prohibit ion of “pets or other animals[, ]” a total of twenty

- five dogs were confiscated from the property , including the two imported from the Dominican Republic nine days earlier

. (State’s Exh. 27, p. 76). All of the dogs were American Staffordshire Terriers or a mix of th e breed , which are more commonly referred to as pit bull s . The dogs ranged in age from approximately five weeks to eight years, included both males and females, and were not neutered or spayed.

2 T he residence and yard were left in such a deplorable state that, following the removal of the dogs, city officials condemned the mobile home and ordered that the landlord incur the expense of its demolition.5

Within the two weeks following the dogs’ removal , two veterinarians, Dr. Teresa Calvert (Dr. Calvert) and Dr. Roger Smith (Dr. Smith), volunteered their time and respectively examine d eleven and fourteen of the dogs

. In addition to their observations of scarring, scabbing , lacerations, and penetrating wounds on nineteen of these dogs, Dr. Calvert and Dr. Smith noted findings that included: thin/underweight dogs with muscle waste and p rominent rib, spine, and hip bones; fungal and yeast infections; untreated “cherry eye s ”; inflammation; torn dew claws; being down on their pasterns as the result of mal nutrition and lack of exercise; bow

- leggedness and other orthopedic conditions and deformities ; and parasites , worms , and mange. Both veterinarians testified that the wounds and scarring were consistent with dog

- fighting injuries

. While the veterinarians described the specific maladies of each dog, the condition of Dog 1

— as he was referred to throughout the trial

— was particularly gruesome . As x

- rays demonstrated, a large, open puncture wound on the dog’s cheek had become so infected that the entire left side of the dog’s head was drastically swollen. Along with the “open puncture/draining wounds[,]” Dr. Smith noted that there were numerous other scars in various stages of healing all over the dog’s face, trunk, and forelegs. (State’s Exh. 34, p. 86). Dog 1 was euthanized only six days after his removal from the trailer.
At the Shelter, a n animal behaviorist , a pit bull rescue group, and a team from the American Society for the Prevention of Cruelty to Animals (ASPCA) evaluated the dogs’ temperaments

. In addition to being timid around humans, many of the dogs were exceptionally aggressive, especially toward other animals. In fact, o ne of the pit bulls escaped from her kennel and killed another dog. Although the Shelter endeavored to place6

all of the confiscated pit bulls into adoptive homes , those that were too aggressive to function in “a normal pet societ y” were euthanized . (Tr

. p. 676). On April 13, 2012, the State filed an Information but subsequently dismissed and amended several of the charges. Ultimately, the State charged Johnson with fourteen Counts of possession of animals for fighting contests, Class D felonies, I.C

. § 35

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- 8; two Counts of purchasing animals for fighting contests, Class D felonies, I.C

. § 35

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- 8; o n e Count of promoting an animal fighting contest, a Class D felon y , I.C

. § 35

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- 9.5; and nine Counts of cruelty to an animal , Class A misdemeanors, I .C

. § 35

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- 7(a). With the exception of the charge for promoting an animal fighting contest, each of the other twenty

- five Counts correlated with one particular dog. On April 23, 2012, pursuant to Indiana Code section 35

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- 6( e), the trial court ordered the State Veterinarian to conduct an investigation o f the condition of the animals seized from Johnson’s lot. The State Veterinarian subsequently appointed Dr. Melissa Justice (Dr. Justice) , a field veterinarian for the Indian a State Board of Animal Health, to evaluate the dogs. On April 30, 2012 , when Dr. Justice traveled to Muncie to examine the animals, o nly five dogs remained at the Shelter as the rest had been adopted or euthanized

. In the dogs she examined, Dr. Justice found extensive scarring and wounds at various stages of healing on three of the dogs , which she testified were consistent with dog bites. Dr. Justice’s findings also included low body weights and skittish demeanors in some of the dogs. Based on Dr. Just ice’s review of all of the evidence, she opined that the dogs “were in jeopardy prior to being removed” from Johnson’s custody. (Tr

. p. 446). By the7

end of May 2012, thirteen of the dogs had been adopted, and tw elve were euthanized for either medical or temperament reasons . On October 19, 2012, Jo hnson filed a motion to dismiss all twenty

- six of the charges against him . He alleg ed that his constitutional rights had been violated because the dogs were either euthanized or adopted without the court’s permission and without first providing him an opportunity to have the animals examined by his veterinarian, thus inhibiting his ability to form a proper defense. Following a hearing, t he trial court denied Johnson’s motion to dismiss on October 25, 2012.
A six

- day jury trial commenced on October 2 9 , 2012. When the State rested its

case - in

- chief, Johnson moved for a directed verdict . In response, the trial court dismissed the sole Count of promoting an animal fighting contest on double jeopardy grounds, as well as two Counts of animal cruelty due to insufficient evidence. On November 5, 2012, following the close of the evidence, the jur y returned a verdict of guilty on all fourteen Counts of possessi on of animals for fighting contest s and the remaining seven Counts of animal cruelty. The jury found Johnson not guilty of the two Counts of purchasing animals for a fighting contest. Immed iately thereafter, the trial court entered a judgment of conviction for fourteen Class D felonies and seven Class A misdemeanors. On March 1, 2013, the trial court held a sentencing hearing. The trial court sentenced Johnson to a term of three years for e ach of the fourteen Counts of possession of animals for fighting contest s , to be served concurrently. For the s even Counts of animal cruelty , Johnson received concurrent one - year sentence s . The trial court ordered that the

one - year terms be served consecutively to the three

- year term s for an aggregate sentence8

of four years, all executed in the Indiana Department of Correction. Thereafter, Johnson posted a bond and has deferred his incarceration pending appeal. Johnson now appeals. Additional fact s will be provided as necessary.

DISCUSSION AND DECISION
I. Sufficiency of the Evidence
A. Standard of Review Johnson first claims that there is insufficient evidence to sustain his conviction of possession of animals for fighting contests. Our standard of review for sufficiency of the evidence cases is well established. O ur court will not reweigh evidence or assess the credibility of witnesses, and we will consider only the evidence most favorable to the verdict, along with any reasonable i nferences that may be drawn therefrom. Clemons v.
State , 987 N.E.2d 92, 95 (Ind. Ct. App. 2013). As long as the evidence and all derivative inferences “constitute substantial evidence of probative value to support the judgment[,]” we will affirm the conv iction. Id. Where a conviction is based, at least in part, on circumstantial evidence, the “evidence need not overcome every reasonable hypothesis of innocence.” Id. “Reversal is appropriate only when reasonable persons would not be able to form infere nces as to each material element of the offense.” Id.

B. Possession of Animals for Fighting Contest s Under Indiana law, it is a Class D felony if an individual “ knowingly or intentionally purchases or possesses an animal for the purpose of using the animal in an animal fighting contest.” I .C

. § 35

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- 8. An “animal fighting contest” is defined as “a conflict between two (2) or more animals. The term does not include a conflict that is u norganized or9

accidental.” I.C

. § 35

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- 4. Johnson was convicted of fourteen Counts of this offense. 3
T his statute does not require the State to prove that Johnson hosted an animal fight or that he ever used the dogs in an animal fighting contest; rather, Johnson’s intended purpose in possessing the pit bulls is the pertinent consideration. See, e.g. , I.C. §§ 35

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- 9 to

- 10. It is well established that “ [ i ] ntent may be prove d by circumstantial evidence [and] can be inferred from a defendant’s conduct and the natural and usual sequence to which such conduct logically and reasonably points.” Lee v. State , 97 3 N.E.2d 1207, 1210 (Ind. Ct. App. 2012) (citation omitted), trans. denied . “ The fact finder is entitled to infer intent from the surrounding circumstances .” Id. Johnson concedes that the testimo ny of the three veterinarians and Terry Mills (Mills), the ASPCA’s Director of Blood Sports Investigations, in conjunction with the paraphernalia recovered from the trailer , “could reasonably support the inference by the jury that the animals had been involved in animal fighting in the past .” (Appellant’s Br. p. 18). However, according to Johnson, this is not enough. It must be demonstrated in some way that [] Johnson maintained the purpose to fight his animals at some future time, and the method of proof must be more than they were used in animal fighting conte sts in the past, so the inference is made that the individual in possession intends to use them in that way in the future

. (Appellant’s Br. p. 18). To date, there is only one appellate decision concerning the sufficiency of the evidence used to obtain a conviction pursuant to Indiana Code section 35

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- 8. I n

3 Johnson does no t challenge his conviction of seven Counts of cruelty to an animal.10

Clemons , 987 N.E.2d at 95 , Clemons was convicted of possessing animal s to use in animal fighting contest s . Despite Clemons’ argument that there was no evidence that he had actually participated in a cockfight, our court found overwhelming evidence that Clemons knowingly or intentionally possessed “battle cocks” for fighting purposes

. Id. at 95

- 96. In addition to the 193 roosters and hens recovered from Clemons’ property at a ratio of two or three roosters for every hen, which is “indicative of a cockfighting operation,” the evidence revealed that a majority of the roosters had been “dubbed” to prevent their wattles
and combs from excessive bleeding; fifty of the roosters were tethe red to cages w ith their food and water placed on top of barrels ; many of the roosters had shortened spurs; and cockfighting gear such as magazines, training regimens, grooming tools, medicines, and dietary supplements were discovered in Clemons’ possession

. Id. Although Clem o ns attempted to characterize the evidence as tools and techniques used by legitimate bird breeders, the totality of th e circumstances established that those roosters were slated to fight

. Id. at 96. We find the present situation to be analogous to Clemons . There is no direct evidence of Johnson en gaging these dogs in an actual, organized dog fight, and it is undisputed that there were no “dog fighting pits” on the property. (Tr

. p. 734 ). Neverthele ss, the record reveals that Johnson ac cumulated twenty

- five pit bulls, fourteen of which are the subjects of these charges. Three veterinarians testified that, among other ailments, all fourteen of th e se dogs were covered in scars, scabs, and puncture wounds at various stages of healing. Furthermore, all of the veterinarians stated that the bite marks and wounds

—

which were primarily concentrated on the dogs’ faces, ears, front legs, necks,11

and chests

— w ere consistent with injuries that would be sustai ned in a dog fight. Likewise, Mills testified that in a dog fight, “the most consistent injuries are in the front of the dog, the chest, and the forearms and the muzzle area and ears.” (Tr

. p. 760). As in Clemons , t he presence of paraphernalia further supports a finding that Johnson was conditioning the pit bulls to fight. P olice officers seized dog treadmills, weighted harnesses and collars, and various types of weight

- boosting and performance

- enhancing

s upplements , all of which are commonly used to train dogs for a fight

. See I

. C

. § 35

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- 4.3 (defining “animal fighting paraphernalia”). Johnson correctly posits that there is nothing illegal about merely possessin g dog treadmills and harnesses. I f the evidence had otherwise consisted of a muscular, healthy, well

- nourished and confident pit bull, the paraphernalia would likely be insignificant to uphold his conviction , but s uch is not the

case. Moreover, Mills, who was involved in eighty

- six dog fights during an eighteen

month undercover operation with the FBI, explained that following a fight, the dog handlers do not take their dogs to a veterinarian. Instead, the handlers personally treat the dogs’ injuries. To this end, the police officers found fiv e bottles of Penicillin, syringes, 4 and several types of wound spray and ointment in Johnson’s trailer. Johnson attempts to distinguish his case from Clemons , citing the fact that Clemons had discussed the desirable qualities of cockfighting roosters with the director of the humane society, who was posing as an interested buyer, and that Clemons had been

4 Johnson testified that he used the syringes to give the puppies their shots and to administer dietary supplements, but th e jury also heard the veterinarians’ findings that the puppies were infested with parasites and worms.12

featured in a cockfighting trade journal giving advice o n aggressive bird breeding. However, Johnson fails to note that Clemons had admitted to participating in cockfighting in the past but maintained that he adhered to Indiana law and limited his activities to selling, buying, and breeding roosters. Clemons , 987 N.E.2d at 93

- 94. Contrary to Johnson’s argument that the dogs’ fighting history cannot be indicative of their future purpose, the Clemons court found the evidence that the roosters had been used to fight in the past, combined with the fighting paraph ernalia, was sufficient to uphold Clemons’ conviction.
We find the same rationale applies in Johnson’s cas e . We also find little merit in Johnson’s endeavor to shift the blame for the dogs’ shocking conditions. With the exception of one d og, which Johnson claimed had received facial scar s by chewing through the metal siding of the garage, Johnson testified that all of the other dogs were in perfect health , having no scars or injuries, at t he time they were confiscated. Per Johnson , these dogs susta ined their scars because the Shelter allowed them to fight, and the Shelter failed to provide the animals with proper nourishment. Even if we could fathom th ese accusation s , it is not the role of our court to assess witness credibility or weigh the eviden ce . See Fuller v. State, 674 N.E.2d 576, 578 (Ind. Ct. App. 1996). Thus , i t was well withi n the province of the jury to believe the concurring testimony of three veterinarians, an ASPCA blood sport expert, multiple police officers, and the Shelter ’s superintendent

. C. Other Purposes Johnson contends that the evidence is insufficient to prove his intent because “there

are non - animal fighting reasons to maintain possession of the animals, as well as the13

paraphernalia.” (Appellant’s Br. p. 19). During the trial, Johnson explaine d that he kept twenty

- five pit bulls in a n otherwise abandoned trailer in order to enter the pit bulls in to conformation and weight

- pulling competitions, which are legal activitie s . Johnson also maintained that some of t h e dogs were strictly used for breeding purposes or for companionship. In support of his position, Johnson submitted photographs of some ribbons and trophies as “examples of things [he had] won” at dog s hows and s tated that he had been training two of the dogs for a weight

- pulling competition that was scheduled to

occur one month after the dogs were seize d

. (Tr

. p. 985). As such, Johnson explained that he had been using the four

- pound weighted collars to condition the dogs to pull a half

- ton payload and that he was feeding the dogs a special diet to reduce t hem to t heir lowest weight while still building muscle. With respect to his breeding claim, Johnson submitted several photographs depicting a few of the dogs in the act of mating. We find that Johnson’s arguments amount to a request to reweigh the evidence, which we decline to do. See Clemons , 987 N.E.2d at 96. T he record contains sufficient contradictory evidence of Johnson’s illicit purpose for keeping twenty

- five caged pit bulls, and “reasonable minds could reach the inferences drawn by the jury.” Fuller , 674 N.E.2d
at 578. As b oth Dr. Justice and Mills explained, weight

- pulling contests necessitate healthy, heavily musc u l a r dogs. Mills also described how dog handlers must ensure their dogs do not exceed a specific predetermined fight weight , and although weight

- pulling contests do not generally include dogs covered in scars, some dog handlers do participate “as a cover for their dog fighting.” (Tr

. p. 770). Johnson , who was previously cited while living in New Jersey for failing to provide dogs with food and water, specified that he14

regularly took photographs of the dogs ’ activities in order to defend himself against accusations such as those at hand. Yet, he stated that he did not keep records of the puppy litters, dog sale/exchange transactions, or pedigrees; nor did he off e r a single photograph of his dog(s) participating in a competition.
W e do not dispute Johnso n’s assertion that “ millions of Hoosiers own animals, and the vast majority of them would never dream of using the m in an animal fighting contest. ” (Appellant’s Br. p. 19). It is clear from the evidence, however, that Johnson is not included among this m ajority of Hoosiers. Accordingly, we find that there was sufficient evidence for the jury to determine that Johnson possessed these fourteen pit bulls for the purpose of animal fighting . Fortunately for Johnson, the Indiana Department of Correction will not subject him to the inhumane conditions that he force d upon those twenty

- five dogs.
II. Double Jeopardy Johnson also claims that his conviction merits reversal because it violates th e d ouble j eopardy c lause of the Indiana Constitution. Article I , Section 14 of the Indiana Constitution provides: “No person shall be put in jeopardy twice for the same offense.” Our supreme court has developed the following two

- part test for reviewing double jeopardy claims: [T] wo or more offenses are the “same offense” in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.15

Lee v. State , 892 N.E.2d 1231, 1233 (Ind. 2008) (quoting Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999)). In this case, J ohnson claim s t hat his conviction cannot be sustained under the actual evidence portion of the same offense test

. According to Indiana’s double jeopardy jurisprudence, “the actual evidence presented at trial is examined to determine whether each challenged offense was

es tablished by separate and distinct facts.” Richardson , 717 N.E.2d at 53. T he defendant must establish “a reasonable probability that the evidentiary facts used by the fact

- finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. ” Id. A reasonable possibility tha t the fact

- finder relied on the same facts for multiple offenses “requires substantially more than a logical possibility” and “turns on a practical assessment of whether the jury may have latched on to exactly the same facts for both convictions.” James v . State , 953 N.E.2d 1191, 1194 (Ind. Ct. App. 2011). On review, we c onsider the charging information, jury instructions, and arguments of counsel to determine the facts relied upon by the jury for each element of each offense. Id. If “the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense[,]” there is no double jeopardy violation. Spivey v. State , 761 N.E.2d 831, 83 3 (Ind. 2002). The essential elements of the charged offense are that Johnson (1) knowingly or intentionally (2) possess ed the dogs (3) for the purpose of using each dog in an animal fighting contest. I .C

. § 35

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- 8. It is undisputed that Johnson owned the fourteen pit bulls forming the bases for these charges. Johnson asserts a double jeopardy violation16

because “ the jurors may have very well considered the presence and condition of [ the thirteen other dogs ] in finding that [ he ] did, in fact, intend to involve [ one dog] in an animal fighting contest.” (Appellant’s Br. p. 24). As a result, Johnson seeks reversal on thirteen of the fourteen Counts. We disagree. The record is replete with evidentiary facts to independently support each of the fourteen charges of possessing animals for fighting
purposes. Dr. Calvert, Dr. Smith, and Dr. Justice testified about the specific dog fight

- type injuries found on e very single dog. Photographs of the individual animals also illustrated the severity of each dog’s battle scars for the jurors to assess. Johnson further notes that the jury received an instruction about the statutory definition of an “animal fighting contest

. ” (Appellant’s Br. p. 23). Because the jury was specifically informed that such a conflict r equires a minimum of two animals, Johnson argues that the jury could “have considered the fact that there were in that one location the multiple animals necessary to hold an animal fighting contest in arriving at the ultimate conclusion.” (Appellant’s Br. p. 24). Again, we disagree . During the trial, Mills described , in great detail , the customs of organized dog fights

. As Mills explained, dog handlers do not pit two of their own dogs against each other in a fight. B ecause of the wagers and reputations at stake, each dog represents a potential value to its owner which is contingent upon the outcome of a fight. A winning dog is credited with respect, whereas it is not uncommon for a handler to execute his dog following a loss . Moreover, the logistics o f the actual fight resemble a boxing match in that each handler remains in his dog’s respective corner; he picks the dog up between rounds, sponges the dog’s face, and acknowledges to the referee when his dog shows weakness during the fight. Because there17

is evidence that each of the fourteen dogs was possessed for the purpose of fighting against the dog of a different handler, we find Johnson’s contention that the jury relied on the same facts to be unfounded. CONCLUSION Based on the foregoing, we conclud e that there is sufficient evidence to uphold Johnson’s conviction of fourteen Class D felon ies for possession of animals for fighting contests, and his conviction does not violate the double jeopardy clau se of the Indiana Constitution. Affirmed. ROBB, J. and BRADFORD, J. concur