Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                   Jul 16 2014, 10:04 am
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:

SUSAN E. SCHULTZ                                  GREGORY F. ZOELLER
Corydon, Indiana                                  Attorney General of Indiana

                                                  BRIAN REITZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RANDELL LEE,                                      )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 31A01-1401-CR-10
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE HARRISON SUPERIOR COURT
                    The Honorable Elizabeth W. Swarens, Judge Pro Tempore
                               Cause No. 31D01-1112-FD-989



                                         July 16, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                               STATEMENT OF THE CASE

       Randell Lee1 appeals his conviction for neglect of a dependent, as a Class D

felony, and four convictions for cruelty to an animal, each as a Class A misdemeanor,

following a jury trial. Randell raises two issues for our review, which we restate as

follows:

       1.      Whether the trial court abused its discretion when it admitted
               evidence seized pursuant to a search warrant.

       2.      Whether the State presented sufficient evidence to support Randell’s
               four convictions for cruelty to an animal.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       In November of 2011, Jeri Warren was informed by her landlord that she had to

get rid of seven cats she had living under her leased mobile home in Louisville,

Kentucky. Warren called a no-kill shelter in Louisville, but the shelter informed her that

all it could do for her was to post her story on its MySpace page, which it did.

Thereafter, Samantha Lee, Randell’s wife, called Warren based on the MySpace post.

Samantha told her that she “took in strays” and offered to pick the cats up from Warren’s

residence. Tr. at 83. On November 16, Samantha arrived at Warren’s residence and

removed two of the cats.

       The next morning, Warren attempted to call Samantha, but the number Samantha

had provided Warren was disconnected. Warren then called the Better Business Bureau

for Samantha’s business address, obtained it, and drove to a location in Harrison County,


       1
           There is confusion in the record over the spelling of Randell’s first name. We follow the
spelling employed by his counsel and the caption of the trial court’s judgment of conviction.
                                                 2
Indiana. That location was the Lees’ residence. When Warren arrived, she walked to the

front door and immediately observed “[f]ilth and . . . a strong smell.” Id. at 86. The

smell was so strong “it would burn your eyes, your nose” just by “being at the front

door.” Id. at 87. Warren was “upset that [her] cats w[ere] living in that condition” and

she promptly called the police. Id.

       Officer Gary Gilley of the Harrison County Sheriff’s Department responded to

Warren’s call and went to the Lees’ residence. Upon arriving at the Lees’ residence,

Officer Gilley observed that “the yard was covered with . . . filth . . . [and] dog feces.”

Id. at 108. Officer Gilley knocked on the front door, which was behind a dog in a cage

on the porch. The caged dog did not have food or water. There were also four caged

chickens on the front porch, which also were without food or water. Officer Gilley

“could smell a[n] odor of urine or ammonia . . . very strong on the porch,” which

“obvious[ly]” came from within the residence. Id. at 108-09. Through the front window,

Officer Gilley could see “trash strewn about the house [and] what appeared to be animal

feces on the floor,” along with four or five cats inside the house. Id. at 110.

       No one answered the front door in response to Officer Gilley’s knock, and he

walked around to the back of the house. There, he observed two dogs in cages “in the

mud” with no bedding, food, or water. Id. at 112. One dog was muddy and wet and was

“shivering.” Id.

       Based on his observations, Officer Gilley sought and received a search warrant for

the Lees’ residence. Upon returning to the residence and announcing that he would force

his way in with the search warrant, Randell opened the front door. Officer Gilley


                                              3
observed that the interior of the residence had fecal matter “all over,” including on

clothing, on stuffed animals, in vents, on walls, in their pantry with food, and throughout

the kitchen. Id. at 121. Some of the fecal matter contained blood. The basement was

moldy and had standing water along with plugged-in electrical devices.

       The officers seized thirty-six cats, four chickens, and three dogs from the property.

Warren’s two cats were found still inside the Lees’ van in their driveway. Officers from

the Department of Child Services, the Health Department, and Animal Control also

responded to the scene. Animal Control Officer Bruce Lahue observed that, in addition

to the deplorable living conditions, several of the cats “were very thin,” some were

“leaking from . . . the rectum,” and some were “vomiting as we moved about the

residence.” Id. at 250-52. Officer Lahue determined that “the majority of the animals

appeared sick.” Id. at 252. Two of the cats had to be euthanized and two other cats died

in their cages shortly after they were seized.

       On December 16, 2011, the State charged Randell2 with neglect of a dependent, as

a Class D felony, and four counts of cruelty to an animal, each as a Class A

misdemeanor. The jury found Randell guilty as charged, and the trial court sentenced

him to an aggregate term of two and one-half years, all of which were suspended to

probation. This appeal ensued.




       2
           The State also charged Samantha, and she and Randell were jointly tried. But she does not
participate in this appeal.
                                                 4
                                DISCUSSION AND DECISION

                              Issue One: Admission of Evidence

        Randell first asserts that the trial court abused its discretion when it admitted the

evidence that had been seized pursuant to the search warrant. Our standard of review of a

trial court’s admission or exclusion of evidence is an abuse of discretion. Speybroeck v.

State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court abuses its discretion only

if its decision is clearly against the logic and effect of the facts and circumstances before

the court. Id.

        Randell argues that Officer Gilley’s probable cause affidavit in support of the

search warrant was so lacking that the issuance of the warrant violated his rights under

the Fourth Amendment to the United States Constitution.3 In particular, Randell argues

that Officer Gilley failed to fully inform the issuing court that Warren had initially falsely

reported that her cats had been stolen by Samantha; that the affidavit contains

uncorroborated hearsay from Officer Lahue regarding conditions at the property; that

Officer Gilley improperly invaded the curtilage of the home by entering the back yard

after no one answered his knock at the front door; and that there was no probable cause to

conclude that evidence of a crime would be found at the Lees’ home.

        We reject Randell’s arguments. Officer Gilley’s probable cause affidavit was

substantially based on his own observations from the front yard and the front porch of the

Lees’ residence, along with looking through a front window into their residence. It is

well established that “there is no Fourth Amendment protection for activities or items


        3
          Randell does not argue that his rights under Article 1, Section 11 of the Indiana Constitution
were violated.
                                                   5
that, even if within the curtilage, are knowingly exposed to the public.” Trimble v. State,

842 N.E.2d 798, 802 (Ind. 2006). This applies to activities or items viewable along “[t]he

route which any visitor to a residence would use,” such as “walkways, driveways, and

porches.” Id. (quotations omitted).

      Further, Officer Gilley obtained a search warrant from a neutral magistrate. As

our Supreme Court has explained:

      Even if a warrant is invalid for lack of probable cause, the exclusionary rule
      does not apply if the police acted in objectively reasonable reliance on the
      subsequently invalidated search warrant. Evidence should be suppressed
      only if it can be said that the law enforcement officer had knowledge, or
      may properly be charged with knowledge, that the search was
      unconstitutional under the Fourth Amendment. Put differently, the high
      cost associated with suppression is appropriate only where police acts are
      sufficiently culpable and suppression can meaningfully deter those acts.
      The good-faith inquiry is confined to the objectively ascertainable question
      whether a reasonably well trained officer would have known that the search
      was illegal in light of all of the circumstances.

Shotts v. State, 925 N.E.2d 719, 724 (Ind. 2010) (citations, quotations, and alterations

omitted).

      Thus, to prevail on appeal, Randell must demonstrate not only that the warrant is

invalid for lack of probable cause but also that Officer Gilley was “sufficiently culpable”

in obtaining the invalid warrant and “had knowledge, or may properly be charged with

knowledge, that the search was unconstitutional.” Id. In light of the fact that Officer

Gilley’s probable cause affidavit was substantially based on his own observations and

that the law was clearly with Officer Gilley when he made those observations, we

disagree with Randell that “a reasonably well trained officer would have known that the

search was illegal in light of all the circumstances.” Id. Thus, even if the warrant were


                                            6
invalid, Officer Gilley’s reliance on the warrant was in good faith and suppression of the

evidence is not appropriate.

        In his Reply Brief, Randell asserts that the good faith exception “is not applicable

when the officer who signed the probable cause affidavit, and who personally obtained

the warrant from the Judge, executed the warrant and, along with others, conducted the

search.” Reply Br. at 6 (citing Bradley v. State, 609 N.E.2d 420 (Ind. 1993)). But the

authority cited by Randell in support of this proposition, Bradley, says no such thing.

Indeed, the court in Bradley, following well established law, used an objective test to

determine whether the good faith exception applied.                   Bradley, 609 N.E.2d at 424

(“Detective Sergeant Gibbs could not have had a reasonable belief in the validity of the

warrant . . . .”) (emphasis added); see also Shotts, 925 N.E.2d at 724 (“the exclusionary

rule does not apply if the police acted in objectively reasonable reliance on the

subsequently invalidated search warrant.”).

        In sum, there was probable cause for issuance of the warrant, and, while it is

unnecessary to invoke the good faith exception to save the warrant, we conclude that

Officer Gulley had an objective good faith belief that the search warrant and the

subsequent search were legal. Thus, the trial court did not abuse its discretion when it

admitted the evidence seized pursuant to the warrant.

                            Issue Two: Sufficiency of the Evidence

        Randell next asserts that the State failed to present sufficient evidence to support

his convictions for cruelty to an animal.4 When reviewing a claim of sufficiency of the


        4
           Randell does not challenge the sufficiency of the State’s evidence underlying his conviction for
neglect of a dependent, as a Class D felony.
                                                    7
evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones

v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence

supporting the verdict and the reasonable inferences that may be drawn from that

evidence to determine whether a reasonable trier of fact could conclude the defendant

was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative

value to support the conviction, it will not be set aside. Id. To demonstrate that Randell

committed cruelty to an animal, as a Class A misdemeanor, the State was required to

show that Randell had a vertebrate animal in his custody and he neglected the animal.5

Ind. Code § 35-46-3-7(a).

        Randell challenges only whether the State’s evidence demonstrated that he had

custody over the neglected animals. According to Randell, the neglected animals were in

the custody of his wife, Samantha. But Randell wholly ignores the fact that the animals

were neglected in his home as much as they were neglected in Samantha’s home.

        5
            “Neglect” means, in relevant part:

        (A) endangering an animal’s health by failing to provide or arrange to provide the animal
        with food or drink, if the animal is dependent upon the person for the provision of food or
        drink;

                                                    ***

        (D) failing to:
                 (i) provide reasonable care for; or
                 (ii) seek veterinary care for;
        an injury or illness to a dog or cat that seriously endangers the life or health of the dog or
        cat; or

        (E) leaving a dog or cat outside and exposed to:
                (i) excessive heat without providing the animal with a means of shade from the
                heat; or
                (ii) excessive cold if the animal is not provided with straw or another means of
                protection from the cold;
        regardless of whether the animal is restrained or kept in a kennel.

Ind. Code § 35-46-3-0.5(4). Randell does not dispute that the animals here were neglected.
                                                      8
Further, Samantha testified that Randell “helped me when I needed help” with the

animals. Tr. at 549. We are satisfied that the State presented sufficient evidence for the

jury to find Randell guilty on each count of cruelty to an animal.

       Affirmed.

VAIDIK, C.J., and BROWN, J., concur.




                                             9
