Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          FILED
any court except for the purpose of                         Feb 13 2013, 9:27 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                              CLERK
                                                                  of the supreme court,
case.                                                             court of appeals and
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MICHAEL A. SLAGLE                               GREGORY F. ZOELLER
Slagle Law Office                               Attorney General of Indiana
Terre Haute, Indiana
                                                RYAN D. JOHANNINGSMEIER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

LEE ROSS,                                       )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 61A01-1207-CR-306
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE PARKE CIRCUIT COURT
                          The Honorable Sam A. Swaim, Judge
                            Cause No. 61C01-1109-CM-300



                                     February 13, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
        Lee Ross appeals her convictions for cruelty to an animal as class A

misdemeanors.1 Ross raises one issue which is whether the evidence is sufficient to

sustain her convictions. We affirm.

        The facts most favorable to the convictions follow. On a very hot day, September

1, 2011, John Thomas was at his home in Rosedale, Indiana.2 At approximately 1 p.m.

he heard a disturbance outside, and he looked outside and observed that his son’s

girlfriend, Tiara Chaney, was trapped in her vehicle on his driveway by three “[p]retty

big” dogs which Thomas knew belonged to Ross.3 Transcript at 5. The dogs began to

fight with each other and then ran towards Ross’s home, and Chaney was able to enter

Thomas’s home.

        Soon after, Jayleen Strole was walking in the same area when the same three dogs

ran towards her, circled her, and bit her ankles and toes. The dogs began to jump on her

and attempted to knock her down, and she “looked down and the one Pit Bull that was

over here just reached in and grabbed a hunk out of [her] leg, looked up at [her] and had

blood all over its mouth and [her] meat and was chewing it and swallowed it in front of

[her].” Id. at 19. Jimmy Baynum, a tree service worker, observed the dogs attacking

Strole and “ripping at her savagely,” and he drove towards her in his truck and attempted

to scare them off by honking his horn. Id. at 39. When that failed to work, Baynum

        1
            Ind. Code § 35-46-3-7 (Supp. 2009).
        2
         The State introduced climatological data indicating that the high temperature in the area on that
day 2011 was ninety-seven degrees. Officer John Holcomb testified that the heat index “was well over
100.” Transcript at 51.
        3
          James Combs, a veterinarian with the Indiana State Board of Animal Health who examined the
dogs, testified that one dog was a “Coonhound type dog and the other two were Bull Terrier dogs or
mixes of that.” Transcript at 59. Ross testified that the Coonhound was the mother of the other two dogs.
                                                    2
exited the vehicle and attacked the dogs with his hands and feet and was able to free

Strole from the dogs. Baynum called 911 and attempted to calm Strole down. He

retrieved a first aid kit from his truck, and while he was administering Strole first aid,

Thomas fired a gunshot because he observed one of the dogs approaching Baynum from

behind. The dogs then ran back behind Ross’s fence.

      Deputy Steven Runyan of the Parke County Sheriff’s Office arrived on the scene

and observed Strole being treated by first responders.      Deputy Runyan spoke with

Baynum, located the dogs inside the fenced area of Ross’s residence and noted that they

were aggressive, observed an opening in the fence, and slid a piece of wood across the

opening to contain the dogs. Deputy Runyan also contacted the local school and advised

the school to hold the students until the dogs could be secured. Also, Officer John

Holcomb, a part time animal-control officer, arrived around 2:30, and when he and

Deputy Runyan entered the fenced area the dogs charged at him “very aggressively.” Id.

at 49. Officer Holcomb donned a bite suit, and, using a six-foot snare, attempted to

capture the dogs. Deputy Runyan observed a broken window with broken glass on the

south side of the home which he determined was the only way the dogs could have

exited. Deputy Runyan did not hear or observe any air conditioning or fans running in

the home.

      Officer Holcomb did not have a problem capturing one of the dogs, but “[t]he

other two were very, very aggressive. I’m talking red zone,” or “over the top” to the

point that “you can’t handle them” and they were “very dangerous.” Id. at 50. The dogs

were biting at his snare pole, bleeding at the mouth, and trying to attack him. After

                                            3
capturing the second dog, Officer Holcomb rested for a while due to the heat which, with

the heat index, “was well over 100.” Id. at 51. Also, Deputy Runyan rotated with Officer

Kent Hutchins between watching the yard and taking cover under the shade of a tree to

keep cool. Officer Holcomb was eventually able to capture all three dogs.

      On September 9, 2011, the State charged Ross with three counts of cruelty to an

animal as class A misdemeanors. On June 6, 2012, the court held a bench trial at which

evidence consistent with the foregoing was presented. Thomas testified that he had not

observed Ross at her home for at least a week or two leading up to the September 1, 2011

incident, that he believed she was not often present at the home, and that he had not

observed the dogs for two or three weeks leading up to the incident. Thomas also

testified that he was not working during this time period and was home “quite a bit.” Id.

at 9. Strole testified that she had lived in the area for approximately six years and that

she had previously observed one of the dogs but not the other two.

      Baynum testified that he went back to the scene on the morning of September 2,

2011, because he had been asked to file a report and he wanted to better understand the

facts including the names of the persons involved and the streets, and while at the scene

he observed Ross and a male, later identified as Dave Conder, sitting in a vehicle and he

approached the vehicle. Baynum testified that Ross and Conder indicated that they had

“stayed the night out in their car” because “they were afraid to go inside.” Id. at 38.

Baynum also testified that Ross indicated that “she had no idea, that she had been out of

town over in Indianapolis for the past week and that they’d just gotten back and was

afraid to go inside,” and she apologized to Baynum. Id. at 40. Baynum testified that it

                                            4
struck him as “odd that they were in the vehicle all night and the windows were fogged

up.” Id. at 41.

       Officer Holcomb testified that, in his experience, heat can be very stressful on a

dog, that dogs have to have water and ventilation, and that “[i]f they don’t have that –

that’s what causes a lot of these dogs to go in the red zone . . . . Any time after 90

degrees they really get stressed out.” Id. at 52. James Combs of the Indiana State Board

of Animal Health testified that heat can be a stressor on a dog, that safe levels are

“between 45 and 85 degrees,” and that “[b]eyond those extremes then you can see

difficulties . . . .” Id. at 61. Combs testified that extreme heat conditions occur in “an

enclosed situation with no ventilation . . . .” Id. at 66.

       Deputy Randall Kneeland of the Parke County Sheriff’s Office testified that he

was familiar with Ross and the dogs, that the biting incident happened in his front yard,

that he made contact with Ross four days after the incident and she told him she had been

visiting late at night on a daily basis to feed and water the dogs, and that he has observed

Ross keeping the dogs in her van while it was running in the wintertime to keep them

warmer and in the “[s]ummertime I guess to keep them cool. I’m not sure.” Id. at 92.

Deputy Kneeland testified that it had been “some time” since he had witnessed Ross

putting the dogs in the van “because I hadn’t even seen Ms. Ross around either.” Id. at

93. Deputy Kneeland indicated that, four days after the incident no one, including Ross,

had phoned the Parke County Jail to inquire about the dogs. Ross testified that the dogs

previously belonged to her mother, who passed away about one year before the date of



                                               5
the trial. Ross also testified that that she would place a tarp on the floor for the dogs to

use to urinate and defecate.

       The court found Ross guilty as charged, stating that she recklessly neglected the

dogs and abandoned them and that it did not find her testimony nor the testimony of her

friend Dave Conder to be credible. On July 3, 2012, the court held a sentencing hearing

and sentenced Ross to one year suspended to probation on each count and ordered that

the sentences be served concurrently.

       The sole issue is whether the evidence is sufficient to sustain her convictions for

cruelty to an animal as class A misdemeanors. When reviewing the sufficiency of the

evidence to support a conviction, we must consider only the probative evidence and

reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). We do not assess witness credibility or reweigh the evidence. Id. We consider

conflicting evidence most favorably to the trial court’s ruling.       Id.   We affirm the

conviction unless “no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.

2000)). It is not necessary that the evidence overcome every reasonable hypothesis of

innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be

drawn from it to support the verdict. Id. A conviction may be based upon circumstantial

evidence alone. Fought v. State. 898 N.E.2d 447, 450 (Ind. Ct. App. 2008). Reversal is

appropriate only when reasonable persons would not be able to form inferences as to each

material element of the offense. Id.



                                             6
      The offense of cruelty to an animal is governed by Ind. Code § 35-46-3-7 which

provides in relevant part that “(a) A person who: (1) has a vertebrate animal in the

person’s custody; and (2) recklessly, knowingly, or intentionally abandons or neglects the

animal; commits cruelty to an animal, a Class A misdemeanor.” “Neglect” means in part

to “(A) endanger[] an animal’s health by failing to provide or to arrange to provide the

animal with food or drink, if the animal is dependent upon the person” for such or “(C)

restraining an animal in a manner that seriously endangers the animal’s life or health.”

Ind. Code § 35-46-3-0.5(4). “Abandon” means in part to desert an animal or to leave the

animal permanently in a place without making provision for adequate long term care of

the animal. Ind. Code § 35-46-3-0.5(1). Also, the State at a minimum was required to

prove that Ross engaged in the conduct “recklessly,” which the Indiana Code defines as

engaging “in the conduct in plain, conscious, and unjustifiable disregard of harm that

might result and the disregard involves a substantial deviation from acceptable standards

of conduct.” Ind. Code § 35-41-2-2(c).

      Ross begins her argument by discussing the definition of “abandon” and

emphasizes that the definition requires the State to prove that the defendant left the

animal “permanently in a place without making provision for adequate long term care,”

and that the State did not prove permanent desertion of the dogs by Ross. Appellant’s

Brief at 12. Regarding neglect, Ross argues that the State failed to prove neglect beyond

a reasonable doubt and points to a statement made by the court while rendering its

determination of guilt that “I mean look at the situation inside the home and particularly

concerning – well let me back up a second. It would have been nice to have known

                                            7
what the inside of the home was like when this happened, but we don’t know that.”

Id. at 15 (quoting Transcript at 212). Ross argues that, based on this statement, the

court’s determinations regarding the heat of the home, the lack of ventilation, the lack of

running water, and feces in the home were speculative in nature. Ross argues that

testimony by her friend David Conder, as well as her own testimony, established that

there were fans in the home for the purpose of circulating air and that they had been

stopping by the home at night to provide the dogs food and water. Ross argues that

Strole, Baynum, Officer Holcomb, Deputy Runyan, and Combs all indicated during their

testimony that the dogs appeared to be healthy and not malnourished, and Combs also

noted that the dogs were current on their vaccinations.

       The State argues that Ross was absent from the home “for at least several critical

days,” noting in particular that Ross “admitted to Baynum that she had been away from

her home and in Indianapolis for a week.” Appellee’s Brief at 8. The State argues that

Ross “testified that she often had to lay out a tarp or paper for the dogs to urinate and

defecate, because she did not let them out regularly.” Id. at 9. The State argues that on

the date of the attack “the actual temperature was in the upper 90 degrees and the heat

index was over 100 degrees,” that Ross “restrained her animals in her house,” that “[n]o

windows were open other than the window that the dogs had broken to escape,” that

“[n]either the air conditioner nor fans were operating in the house,” and that “[n]o water

or food for the animals was present.” Id. The State argues that Combs, a veterinarian,

testified that “exposing a dog to temperatures of mid-90 degrees to low 100 degrees

would be detrimental to its health” and that “a dog kept in temperatures of over 100

                                             8
degrees with no ventilation would ‘go down fairly quickly.’” Id. (quoting Transcript at

65). The State argues that extreme heat “terribly stresses” dogs and can cause them to

“go into the ‘red zone,’” that “[a]t least two of the three dogs were in the ‘red zone,’”

and that Combs testified “that dogs would attempt to alleviate the condition causing

stress.” Id. at 10. The State also argues that Ross abandoned her dogs, as evidenced by

her admission that she placed a tarp and paper inside for urinating and defecating and that

she had been absent for a week. The State asserts that Ross’s arguments are invitations

that we reweigh the evidence. Ross argues in her reply brief that certain arguments by

the State regarding the conditions inside the home were based upon Deputy Runyan’s

testimony of his observations outside of the residence and that he never entered the

residence.

      Initially, to the extent that Ross argues that the State failed to prove intent, we

observe that “[t]he mens rea element may be proven by circumstantial evidence alone,

and may be inferred from the facts and circumstances of each case.” Baxter v. State, 891

N.E.2d 110, 121 (Ind. Ct. App. 2008) (citing Lykins v. State, 726 N.E.2d 1265, 1270

(Ind. Ct. App. 2000)). “The State is not required to prove mens rea by direct and positive

evidence.” Id.

      As noted above, the court found that Ross recklessly neglected her dogs. The facts

most favorable to her convictions reveal that on September 1, 2011, a day in which the

temperature reached the upper nineties and the heat index was well over 100 degrees,

Ross’s three dogs exited her home by breaking through a window and then left the

premises through a hole in her fence. The dogs “savagely” attacked Strole, and one of

                                            9
the dogs bit “a hunk” from Strole’s leg, chewed it, and swallowed it. Transcript at 19, 39.

Officer Holcomb, an animal-control officer, noted that the dogs were very aggressive and

that two of them were in the “red zone” to the point that “you can’t handle them,” and

they were “very dangerous.” Id. at 50. Prior to the incident, Ross had not been seen at

her home by her neighbors for days or weeks, and Ross admitted to Baynum that she had

been “in Indianapolis for the past week and that they’d just gotten back and [were] afraid

to go inside.” Id. at 40. In the past, Ross had used her van to cool or warm the dogs, but

she had not been seen doing this by Deputy Kneeland, her neighbor, for “some time”

because he had not seen Ross in the neighborhood. Id. at 93. Deputy Runyan testified

that while at Ross’s home he did not hear or observe any air conditioning or fans running

in the home. The following morning, Baynum observed Ross and a male sitting in a

vehicle in her driveway, and Ross explained that she had slept in the vehicle and that she

was afraid to enter the home.

       Ross’s arguments on appeal are an invitation to reweigh the evidence, which we

cannot do. See Drane, 867 N.E.2d at 146. Based upon the record in this case, we

conclude that the State presented evidence of probative value from which a reasonable

trier of fact could have found that Ross restrained her dogs in a manner that seriously

endangered their lives or health beyond a reasonable doubt.4

       Based upon the foregoing, we affirm Ross’s convictions for cruelty to an animal as

class A misdemeanors.

       Affirmed.

       4
         Because we find that the State proved that Ross recklessly neglected the dogs, we need not
analyze whether she abandoned her dogs under Ind. Code § 35-46-3-0.5(1).
                                                10
BAILEY, J., and VAIDIK, J., concur.




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