FOR PUBLICATION



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

IVAN A. ARNAEZ                                GREGORY F. ZOELLER
Arnaez Law Office                             Attorney General of Indiana
Evansville, Indiana
                                              JUSTIN F. ROBEL
                                              Deputy Attorney General
                                              Indianapolis, Indiana
                                                                            FILED
                                                                        Sep 28 2012, 9:19 am

                             IN THE
                                                                                CLERK
                   COURT OF APPEALS OF INDIANA                                of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




STEVEN DUNCAN,                                )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )    No. 82A01-1201-CR-22
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


               APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Allen R. Hamilton, Judge
                         Cause No. 82D05-1003-CM-01417




                                  September 28, 2012



                             OPINION - FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       Following a bench trial, Steven Duncan was convicted of six counts of cruelty to

an animal, all Class A misdemeanors. He raises three issues for our review: 1) Whether

he knowingly waived his right to a jury trial; 2) Whether Indiana’s animal cruelty statute

is unconstitutionally vague; and 3) Whether there was sufficient evidence to overcome a

defense of necessity.

       Concluding that Duncan did not knowingly waive his right to a jury trial because

the trial court did not fully advise him of his rights and obligations, that the statute is not

vague as applied to him, and that there was sufficient evidence to overcome a defense of

necessity, we affirm in part, reverse in part, and remand.

                                Facts and Procedural History

       In March of 2010, Superintendent Monica Freeman of Evansville Animal Care

and Control went to a property to investigate a complaint. At the property she found two

horses in a paddock with no food or water. There were two barns on the property, and in

each barn there were five horses in stalls that were filled with manure and urine and

lacked any apparent food or water. Six more horses were in a pasture with access to hay

and a ditch with water; one of those horses was a “mare with a halter grown into her

face.” Transcript at 291.      As Superintendent Freeman was inspecting the property,

Duncan arrived and admitted to owning and being responsible for the animals. When

asked why the animals were in such poor condition, Duncan offered no explanation. A

veterinarian called to the property found the horses to be living in deplorable conditions.

All of the horses were removed and taken to the county fairgrounds, and Duncan was


                                              2
arrested and charged with thirteen counts of animal cruelty under Indiana Code section

35-46-3-7(a).

         At an initial hearing, Duncan appeared pro se, and in the advisement of rights the

judge noted Duncan’s right to a jury trial, but did not mention the requirement to timely

request a jury trial if one was desired, or the consequences of failing to do so. 1 Duncan

was represented by counsel by the time of a probable cause hearing, and well before a

trial date was set. There is nothing in the record provided to suggest that Duncan was

later informed of the requirements for requesting a jury trial or the consequences of

failing to do so. There is also nothing in the record to indicate that he ever requested a

jury trial, timely or otherwise.

         Following a bench trial, Duncan was found guilty of six counts of neglecting a

vertebrate animal.2 The conditions of the horses for which he was convicted of neglect

are as follows ‒ as explained by veterinarians who examined them, and identified by the

fairground stall number in which they were placed:3

         Horse in stall six: A nineteen year old mare with rain scald over her back, 4 fecal

matted hair, and swollen and inflamed legs. Based on her progression the rain scald

would have been the result of weeks or a month in damp conditions. The swollen and


         1
             Trial by jury in misdemeanor cases is controlled by Indiana Criminal Rule 22, see infra.
         2
           The information charged Duncan with “cruelty to an animal” under Indiana Code section 35-46-3-7,
which is entitled “abandonment or neglect of vertebrate animals.”
         3
          Many of the other horses on the property suffered from problems similar to those seen in these six horses,
but the severity seems not to have risen to the same level, and Duncan was not convicted of neglect for those
animals.
         4
           Rain scald is a gram-positive actinomyces bacterial infection that usually infects horses on their backs,
and is the result of the horse spending time in damp conditions. It is more common in the winter, and it is treatable
if the animal is moved to drier shelter.

                                                            3
inflamed legs could have been caused by her matted and dirty state. Her body score was

two, indicating malnourishment.5

        Horse in stall eight: A twenty-five year old mare with a body score of two to

three, suffering from rain scald. She had injuries that appeared to be caused by a halter

that was too tight, resulting in rubbing or pressure necrosis and leaving her with open

wounds under the halter.

        Horse in stall thirty-one: A two year old colt with a body score of 1.5, suffering

from abdominal pain.

        Two horses in stall thirty-three: Two yearling fillies, both of whom had to be

euthanized on a veterinarian’s recommendation. Both suffered from epiphysitis, a bone

growth plate inflammation that can be due to heredity, physical trauma, or poor nutrition.

The epiphysitis resulted in pain and difficulty walking. Both suffered from rain scald.

They both had body scores of one and were emaciated. At least one of them had

metabolic bone disease, primarily caused by lack of nutrition. The bone disease made

moving very painful, including moving the jaw while trying to eat.

        Horse in stall thirty-six: A yearling who had severe rain scald with open wounds.

He had pitting edema and a swollen head as a result of anemia. He had a body score of

one, suffered from colic and resulting pain, and eventually had to be euthanized.

        Additional facts will be supplied as necessary in the discussion.

                                        Discussion and Decision

                 I. Waiver of Jury Trial in Misdemeanor Cases Under Rule 22


        5
          The horses’ body conditions were rated on a scale of one to ten, with one being emaciated and ten being
fat. A normal horse would be scored at four to six.
                                                       4
                                    A. Standard of Review

       The right of an accused to have a trial by jury is guaranteed by the Indiana and

United States Constitutions. U.S. Const. amend. VI; Ind. Const. art 1, § 13; Belazi v.

State, 525 N.E.2d 351, 351 (Ind. Ct. App. 1988), trans. denied. In criminal cases, the

procedure for asserting the right is codified in Indiana Code section 35-37-1-2 (“The

defendant and prosecuting attorney, with the assent of the court, may submit the trial to

the court.   All other trials must be by jury.”).       While the Constitution does not

differentiate between felonies and misdemeanors, in Indiana the procedure for asserting

the right to a jury trial in misdemeanor cases is controlled by Indiana Criminal Rule 22.

Rule 22 states, in relevant part:

      A defendant charged with a misdemeanor may demand trial by jury by
      filing a written demand therefor not later than ten (10) days before his first
      scheduled trial date. The failure of a defendant to demand a trial by jury as
      required by this rule shall constitute a waiver by him of trial by jury unless
      the defendant has not had at least fifteen (15) days advance notice of his
      scheduled trial date and of the consequences of his failure to demand a trial
      by jury.
While a defendant charged with a misdemeanor can therefore waive his right to a jury

trial by inaction, the waiver must nonetheless be knowing, voluntary, and intelligent.

Eldridge v. State, 627 N.E.2d 844, 846-47 (Ind. Ct. App. 1994), trans. denied; see also

Brown v. State, 495 N.E.2d 178, 179 (Ind. 1986). On appeal, we consider the entire

record to determine whether the defendant has made a voluntary, knowing, and intelligent

waiver. Holtz v. State, 858 N.E.2d 1059, 1061 (Ind. Ct. App. 2006), trans. denied.


                                    B. Waiver of Jury Trial

       The right to trial by jury is a fundamental right, and while the manner of

preserving that right is altered by Criminal Rule 22, it is not diminished. Pryor v. State,
                                              5
2012 WL 3727137 at *4, No. 49A02-1202-CR-101 (Ind. Ct. App., Aug. 29, 2012);

Stevens v. State, 689 N.E.2d 487, 489 (Ind. Ct. App. 1997). There are three elements to a

valid waiver of the right to a jury trial ‒ knowing, voluntary, and intelligent. We have

previously distinguished between these elements: “A voluntary waiver occurs if the

conduct constituting the waiver is the product of a free will; a knowing waiver is the

product of an informed will; an intelligent waiver is the product of a will that has the

capacity to understand. . . .” Eldridge, 627 N.E.2d at 846. Additionally, the waiver needs

to be personal. Id. In a misdemeanor case, the personal nature of the waiver can be

inferred where the defendant fails to assert the right to a jury trial and there is evidence

that the waiver is knowing, voluntary, and intelligent. Id. In the present case, Duncan

contends that his waiver was not knowing because he was not fully informed. We agree.

       The State concedes that Duncan was not advised of the consequences of failing to

ask for a jury trial. We note that he was also not advised of the requirement of a written

demand for a jury trial ten days before his scheduled trial date. The State contends

however that we can infer that Duncan was informed because he was represented and

thus “counsel presumably discussed a jury trial.” Appellee’s Br. at 12. Because the right

to a jury trial is a fundamental right, we cannot assume from a silent record that Duncan

was informed by his counsel. In order to establish a valid waiver in a misdemeanor case,

the record is sufficient if

       1) it does not contain a request for a trial by jury; 2) it evidences that the
       defendant was fully advised of the right to a trial by jury and of the
       consequences for failing to timely request the right; and 3) it reflects that
       the defendant was able to understand the advice.




                                             6
Eldridge, 627 N.E.2d at 848. A defendant may be advised of his rights in multiple ways.

The court can orally inform him of his rights, Poore v. State, 681 N.E.2d 204, 208 (Ind.

1997) (noting also that “[w]hile it is advantageous for a trial judge to engage a defendant

in colloquy concerning the consequences of waiving trial by jury,” it is not required); the

defendant can be given a written advisement, id.; Jackson v. State, 644 N.E.2d 595 (Ind.

Ct. App. 1994); his counsel, on the record, can inform him of his rights and question his

understanding of them, Reynolds v. State, 703 N.E.2d 701 (Ind. Ct. App. 1999); or the

defendant can sign a written waiver and file it in open court, Poore, 681 N.E.2d 204.

       Here, the record lacks any indication that Duncan was fully advised of the

consequences of failing to timely request a jury trial. Our case law further confirms that

even where a defendant is represented, having counsel is not itself a sufficient substitute

for the defendant being expressly advised of his rights. Bex v. State, 952 N.E.2d 347,

349 (Ind. Ct. App. 2001) (noting as an initial matter that a represented defendant was not

fully informed), trans. denied; Hanna-Womack v. State, 623 N.E.2d 439, 440 (Ind. Ct.

App. 1993) (noting that the defendant was not fully informed by the court and that there

was also no indication that she was informed by her counsel); see also Belazi, 525 N.E.2d

at 352 (“We do not believe that representation by counsel is essential in order for a

defendant to waive the right to a jury trial under C.R. 22.”). This assessment is further

cemented by the fact that many cases concluding that a defendant was not well informed

fail to mention whether the defendant was represented. If the fact of representation led

directly to the conclusion that a defendant was informed and thus that a waiver was

knowing, we would have given more care to that point in past opinions.


                                            7
         The State also argues that we should not reverse because Duncan was not

prejudiced. The relevant inquiry however is whether he was adequately informed as

required by Criminal Rule 22. Levels v. State, 972 N.E.2d 972, 972 (Ind. Ct. App. 2012);

Hadley v. State, 636 N.E.2d 173, 174 (Ind. Ct. App. 1994), trans. denied; Vukadinovich

v. State, 529 N.E.2d 837, 839 (Ind. Ct. App. 1988). Furthermore, we have previously

held that a violation of the right to trial by jury is a fundamental error, and cannot be

considered harmless. Eldridge, 627 N.E.2d at 849; see also Bonner v. State, 650 N.E.2d

1139, 1141 (Ind. 1995) (defining “harmless” as error that does not prejudice the

defendant’s substantial rights).

         The State further contends that Duncan consented to his counsel’s trial strategy to

proceed with a bench trial and cannot now object. If there had been a valid waiver by

Duncan in the first place, we might be inclined to agree.6 For this proposition the State

cites Bex, and that case is distinguishable from the present case. In Bex, the matter in

question related to a trial strategy to accept fewer jury members than were required by

statute; it was not about waiver of the right to a jury trial. Bex, 952 N.E.2d at 350. If

Duncan had validly waived his right to a jury trial here, then he would have been bound

by that waiver unless the trial court chose, within its discretion, to allow withdrawal of

the waiver. Hutchins v. State, 493 N.E.2d 444, 445-46 (Ind. 1986).

         Finally, the State correctly argues that there is no indication that Duncan ever

wanted, requested, or was denied a jury trial. But, we have previously noted that it does


         6
           We note that the decision of whether to waive a jury trial will often be more than mere trial strategy. It is
a fundamental right, and is one of the areas where our Rules of Professional Conduct dictate that the client’s wishes
shall control. Ind. Professional Conduct Rule 1.2. On the other hand, we have previously allowed a presumption
that waiver of a jury trial was a strategic move in a misdemeanor case, without evidence to the contrary, and once
the defendant had been informed of his rights under Criminal Rule 22. Stevens, 689 N.E.2d at 490.
                                                           8
not matter whether the defendant requested a jury trial. Casselman v. State, 472 N.E.2d

1310, 1311 n.1 (Ind. Ct. App. 1985) (“The state urges that since Casselman failed to

demand a jury as provided by the rule, no error was committed. The argument is

specious.”). We agree with the State that because Duncan went along with a bench trial

and never requested a jury trial, it is possible that he is only raising the issue now because

he simply wants a new trial. Even so, we are obliged to find that he did not waive his

right to a jury trial. He was not able to meet the “knowing” requirement of a valid waiver

because he was not adequately informed of his rights and obligations as set out in

Criminal Rule 22. See Levels, 972 N.E.2d 972; Vukadinovich, 529 N.E.2d 837.

       While our conclusion in this issue alone requires us to remand the case for jury

trial, because the other two issues that Duncan raises on appeal may impact that new trial

or be brought up again during the trial, we must decide them here.

                             II. Constitutionality of the Statute

                                  A. Standard of Review

       When the validity of a statute is challenged our starting point is a presumption of

constitutionality, and the challenger has the burden of overcoming this presumption.

Price v. State, 911 N.E.2d 716, 719 (Ind. Ct. App. 2009), trans. denied. We resolve all

reasonable doubts in favor of the statute’s constitutionality, and the statute will only be

found to be unconstitutionally vague if a person of ordinary intelligence would not be

able to determine the generally prohibited conduct. Id. The statute need not meticulously

list each item of prohibited conduct. Id. For vagueness challenges which do not involve

First Amendment freedoms, we examine the challenge in light of the facts of that


                                              9
particular case. Id. The challenger may not present hypothetical situations in order to

demonstrate potential vagueness. Id. at 720.

                                        B. Vagueness

       Duncan argues that Indiana’s animal neglect statute is unconstitutionally vague.

See Ind. Code § 35-46-3-7. We disagree. Under the circumstances here, a person of

ordinary intelligence would know that this behavior was prohibited under the statute.

The horses under Duncan’s care were in terrible shape ‒ they were malnourished,

suffering from infections and diseases, and several of them had to be euthanized.

“Neglect” under the statute in question is defined in part as “endangering an animal’s

health by failing to provide or arrange to provide the animal with food or drink, if the

animal is dependent on the person for the provision of food or drink. . . .” Ind. Code §

35-46-3-0.5(4)(A). The majority of horses found on Duncan’s property did not have food

or drink available to them when animal control investigated the property. And it is clear

that their health was endangered as a result because all of the horses underlying Duncan’s

convictions were found to be underweight, with most of them suffering from multiple

health problems. Several were in such poor condition and suffering from such severe

nutrition-related ailments that they had to be euthanized.           The statute is not

unconstitutionally vague as applied to Duncan, and contrary to his contention, it is

“sufficiently definitive to ‘indicate where the line is to be drawn between trivial and

substantial things so that erratic arrests and convictions. . . will not occur.’” Tooley v.

State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009) (quoting Brown v. State, 868 N.E.2d

464, 467 (Ind. 2007)), trans. denied.


                                             10
                                   III. Necessity Defense

                                  A. Standard of Review

       The standard for reviewing sufficiency of the evidence claims is well settled. We

do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755

N.E.2d 173, 185 (Ind. 2001). Rather, we look to the evidence and reasonable inferences

drawn therefrom that support the verdict and will affirm the conviction if there is

probative evidence from which a reasonable trier-of-fact could have found the defendant

guilty beyond a reasonable doubt. Id.

                  B. Necessity Defense and Sufficiency of the Evidence

       We believe the State presented sufficient probative evidence from which a

reasonable trier-of-fact could have found Duncan guilty beyond a reasonable doubt.

Duncan’s evidence of necessity as supplied in his brief relates only to the housing of

horses in manure-filled stables without food or water, a situation that Duncan claims was

temporary and spurred by necessity. He claims that a gate had been damaged the day

before, allowing horses that should have been separated to co-mingle, and he had put the

horses into the dirty stalls temporarily until he could fix the gate. We agree with the State

that this is unrelated to the neglect for which Duncan was convicted, because “his

convictions were based on long-term neglect, not short-term housing related to the

alleged necessity.” Appellee’s Brief at 11. We also note that this court has in the past

considered similar cases of neglect and has held evidence of inappropriately skinny and

malnourished horses to have been sufficient to support a conviction under the statute.

See Miller v. State, 952 N.E.2d 292 (Ind. Ct. App. 2011), trans. denied; Baxter v. State,


                                             11
891 N.E.2d 110 (Ind. Ct. App. 2008); Lykins v. State, 726 N.E.2d 1265 (Ind. Ct. App.

2000).

                                         Conclusion

         Concluding that the statute is not vague as applied to Duncan and that there was

sufficient evidence to overcome a defense of necessity, but that the trial court erred by

insufficiently advising Duncan of his right to a jury trial, we affirm in part, reverse in

part, and remand.

         Affirmed in part, reversed in part, and remanded.


BAKER, J., and BRADFORD, J., concur.




                                             12
