                                                           FILED
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                      Sep 11 2012, 9:12 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                          CLERK
                                                              of the supreme court,
                                                              court of appeals and
case.                                                                tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

GUY H. HASKELL                                  GREGORY F. ZOELLER
Bloomington, Indiana                            Attorney General of Indiana

                                                BRIAN REITZ
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DENNIS YERK,                                    )
                                                )
       Appellant,                               )
                                                )
              vs.                               )        No. 91A02-1111-CR-1056
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee.                                )


                     APPEAL FROM THE WHITE SUPERIOR COURT
                         The Honorable Robert B. Mrzlack, Judge
                              Cause No. 91D01-1101-FD-8


                                    September 11, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                 STATEMENT OF THE CASE

          Dennis Yerk appeals his conviction of killing a domestic animal, a class D felony.1

          We affirm.

                                            ISSUES

          1.      Whether the trial court abused its discretion in not giving Yerk’s
                  tendered self-defense instruction.

          2.      Whether the trial court abused its discretion in not giving an
                  instruction regarding circumstantial evidence.

          3.      Whether the trial court placed Yerk in a position of grave peril by
                  denying his motion for mistrial.

          4.      Whether the State presented sufficient evidence to support the
                  conviction.

                                            FACTS

          On December 19, 2010, Paul Applegate, Jr. and others drove to a rural area in

order to hunt coyotes. Applegate and the others had previously obtained permission to

hunt on a number of properties in this area; however, none of them had permission to

hunt on Yerk’s farm. After Applegate spotted a coyote on property located between 1½

to 2½ miles of Yerk’s farm, he released two dogs that were specifically trained to track

coyotes.       Instead of heading south, as Applegate had expected, the dogs headed

northwest, crossed a road, and entered Yerk’s brother’s field of standing corn that abutted

Yerk’s farm.


1
    Ind. Code § 35-46-3-12(d).
                                               2
       Yerk was working on farm equipment in a pasture north of his house when he

heard barking from the direction of the cornfield. Yerk drove his vehicle to the cornfield,

exited with his .22 caliber rifle in hand, and walked 150 feet from his vehicle to see what

was happening.     The barking dogs emerged from the cornfield approximately two

hundred yards from where Yerk was standing. Yerk fired warning shots over the dogs’

heads, and when they did not stop running, he fired shots at the dogs. Yerk fired multiple

shots that severely injured the dogs, later recalling that he “kept shooting.” (Tr. 168).

Yerk then walked to within fifteen to twenty feet of the dogs and shot each dog in the

head in order to kill them.

       When Applegate arrived at the north side of the field, he saw his dogs lying

motionless on the ground. Conservation Officer Clay Webb responded to a call, drove to

Yerk’s farm, and questioned both Applegate and Yerk.

       On January 12, 2011, the State charged Yerk with killing a domestic animal. The

jury found Yerk guilty of the charge, and the trial court sentenced Yerk to 1½ years,

suspended to informal probation.

                                       DECISION

1.     Self-Defense Instruction

       Yerk contends the trial court abused its discretion in not giving his tendered self-

defense instructions.   He argues that the trial court should have given his tendered

instructions based on the “no retreat” provisions of self-defense against another person

                                            3
rather than the self-defense instruction derived from the statute outlining the defense of

reasonable conduct toward animals.

       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. Fowler v. State, 900 N.E.2d 770, 773 (Ind. Ct.

App. 2009). Instructing a jury is generally within the discretion of the trial court and is

reviewed only for an abuse of that discretion. Cravens v. State, 836 N.E.2d 490, 493

(Ind. Ct. App. 2005), trans. denied. In reviewing a trial court’s decision to refuse a

tendered jury instruction, we consider “(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.” Id.

       Here, Yerk was charged with violating Indiana Code section 35-46-3-12(d), which

provides in relevant part that a person “who knowingly or intentionally kills a domestic

animal without the consent of the owner of the domestic animal commits killing a

domestic animal, a class D felony.”2 Indiana Code section 35-46-3-12(e) provides it is a

“defense to prosecution under this section” that the accused person “reasonably believes

the conduct was necessary to prevent injury to the accused person or another person . . .



2
 “A ‘domestic animal’ means an animal that is not wild,” and the term includes “dogs.” I.C. § 35-46-3-
12(d)(1).
                                                  4
or prevent a seriously injured vertebrate animal from prolonged suffering.”              In

accordance with this defense, the trial court’s instruction provided:

       It is a defense that the accused person reasonably believes the conduct was
       necessary to prevent injury to the accused person and/or to prevent a
       seriously injured vertebrate animal from prolonged suffering. The
       defendant has the burden to prove this defense by a preponderance of the
       evidence. You may not convict the defendant if the defendant has proved
       the following by a preponderance of the evidence: One, the defendant: two;
       reasonably believed his conduct was necessary to prevent injury to himself
       and/or to prevent a seriously injured dog or canine species from prolonged
       suffering. If the defendant proved all of these aspects of the defense by a
       preponderance of the evidence, you cannot find the defendant guilty of
       killing a domestic animal, a class D felony as charged.

(Tr. 211-12; App. 63).
       Yerk’s tendered instructions were derived from Indiana Code § 35-41-3-2(a)-(c),

which generally provides that a person is justified in using reasonable force, including

deadly force, against any other person.” Indiana Code § 35-41-1-22 (now, I.C. § 35-

31.5-2-234) defines a person as “a human being . . . .” Further, the term “animal” does

not include a human being. I.C. § 35-46-3-3. Therefore, as there is no evidence in the

record that the dogs shot by Yerk were anything but animals, the trial court did not err in

refusing his proposed instruction; there was no evidence to support them.

2.     Circumstantial Evidence Instruction

       Yerk contends that the trial court abused its discretion in not giving an instruction

pertaining to circumstantial evidence. He argues that such an instruction is necessary

because his conviction is entirely based on such evidence. He cites Nichols v. State, 591


                                             5
N.E.2d 134 (Ind. 1992) and McDonald v. State, 547 N.E.2d 294 (Ind. Ct. App. 1989) for

the proposition that he is “entitled” to the instruction.

        Yerk failed to tender an instruction on circumstantial evidence at trial or object to

the trial court’s failure to give one sua sponte. These dual failures result in waiver of the

issue on appeal. See Franklin v. State, 715 N.E.2d 1237, 1241 (Ind. 1999). Also, failure

to give a circumstantial evidence instruction when one is not tendered is not fundamental

error. Id. Furthermore, Nichols and McDonald, which involved the refusal of the trial

court to give tendered circumstantial evidence instructions, are inapposite.3

3.      Motion for Mistrial

        Yerk contends that the trial court abused its discretion in denying his motion for

mistrial after the State allowed the jury to hear Yerk’s statement made in a videotaped

interview with police about a prior arrest. The trial court had earlier granted Yerk’s

motion in limine to require redaction of statements by Yerk related to bad acts. Although

two or three similar statements were muted when the tape was shown to the jury, the

statement referring to a prior arrest was not.

        The denial of a motion for mistrial lies within the sound discretion of the trial

court, and we review only for abuse of that discretion. Lucio v. State, 907 N.E.2d 1008,


3
  We are mindful that our Supreme Court has recently held that, where the conduct of the defendant
constituting the commission of a charged offense is proven exclusively by circumstantial evidence, trial
courts need to give an additional jury instruction advising the jury that proof by circumstantial evidence
must be so conclusive and sure as to exclude every reasonable theory of innocence. Hampton v. State,
961 N.E.2d 480 (Ind. 2012). However, this case does not apply here because Defendant Yerk admitted
shooting the dogs, and the rule was not in effect at the time of the trial.
                                                    6
1010 (Ind. 2009). The denial should be reversed only upon a showing that the defendant

was placed in a position of grave peril to which he should not have been subjected.

Wilson v. State, 865 N.E.2d 1024, 1027 (Ind. Ct. App. 2007). The declaration of a

mistrial is an extreme action and is warranted only when no other action can be expected

to remedy the situation. Id. A timely and accurate admonition to the jury is presumed to

sufficiently protect a defendant’s rights and remove any error created by the

objectionable statement. Alvies v. State, 795 N.E.2d 493, 506 (Ind. Ct. App. 2003), trans.

denied.

       Here, Yerk attempts to show grave peril by pointing to the trial court’s pretrial

statement that “references of being arrested previously would be prejudicial.” (Tr. 13).

He also points to the trial court’s statement regarding the admonishment that “Obviously,

you hope the jury will abide by the [limiting] instruction.        You never know how

damaging this kind of reference is.” (Tr. 149).

       Yerk has not included a copy of the videotape in the record on appeal; therefore,

we do not know the exact content of the statement he made in the videotape. The trial

court did, however, view the videotape and assess its impact on the jury. Despite its prior

statements, the trial court determined that the violation of the motion in limine was

accidental and that an admonishment in the form of a limiting instruction, coupled with a

general final instruction, would cure the error. Consequently, the trial court issued a

limiting instruction stating, “Included in the audio statement you just heard, the defendant

                                             7
made a reference to the fact that he had previously been arrested. The Court orders this

reference stricken from the record. You are instructed to disregard it, and you must not

consider it in making your decision.” (Tr. 150). In its final instructions, the trial court

also instructed the jury to disregard excluded testimony.

       We agree with the trial court that the admonishment in the form of a limiting

instruction, coupled with the final instruction, was sufficient to protect Yerk from grave

peril. As our supreme court expressed in Lucio, “[a] clear instruction, together with

strong presumptions that juries follow courts’ instructions and that an admonition cures

any error, severely undercuts the defendant’s position.” 907 N.E.2d at 1011.

4.     Sufficiency of the Evidence

       Yerk contends that the State failed to present sufficient evidence to support his

conviction. Our standard of review for sufficiency claims is well settled. In reviewing

sufficiency of the evidence claims, this court does not reweigh the evidence or assess the

credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans.

denied. Not only must the fact-finder determine whom to believe but also what portions

of conflicting testimony to believe. In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999),

trans. denied. We consider only the evidence most favorable to the judgment, together

with all reasonable inferences drawn therefrom. Davis, 791 N.E.2d at 269-70. The

conviction will be affirmed if there is substantial evidence of probative value to support

the conclusion of the trier of fact. Id. at 270. Reversal is appropriate “only when

                                             8
reasonable persons would not be able to form inferences as to each material element of

the offense.” Alvies, 905 N.E.2d at 61.

        A conviction may rest on circumstantial evidence alone. Peters v. State, 959

N.E.2d 347, 355 (Ind. Ct. App. 2011).         Circumstantial evidence does not need to

overcome every reasonable hypothesis of innocence. Id. It is sufficient if an inference

drawn from the circumstantial evidence reasonably tends to support the conviction. Id.

        In the absence of the statutory defense, the State proves killing a domestic animal

by showing that the defendant knowingly or intentionally killed the animal without the

owner’s consent. I.C. § 35-46-3-12(d). Here, Yerk admitted that he knowingly and

intentionally killed Applegate’s dogs. Furthermore, Applegate testified that he did not

consent to the killing, testimony to which Yerk does not object. The issue, then, is

whether Yerk reasonably believed that it was necessary to protect himself by killing the

dogs.

        Our review of the evidence shows that Yerk began shooting at the dogs when they

were 200 yards away and Yerk was 150 feet from his truck. The evidence also shows

that the dogs were shot several times and were severely disabled before Yerk approached

and shot them in the head. The jury could have concluded that rather than shooting at the

dogs, Yerk could have simply returned to his vehicle and waited for their owner to arrive

on the scene. The jury also could have concluded that Yerk was not truthful in claiming

that the dogs were attempting to attack him.         It could have believed Applegate’s

                                             9
testimony that hunting dogs were nonviolent around people, including young children

and pets, because private property owners would not allow hunters on their property if

the hunters’ dogs were too aggressive. Yerk is asking us to reweigh and reassess the

evidence, which we will not do.

      Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.




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