FOR PUBLICATION

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

L. SCOTT PEJIC                                    GREGORY F. ZOELLER
DiMartino & Pejic, LLP                            Attorney General of Indiana
Michigan City, Indiana
                                                  JUSTIN F. ROEBEL
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                                                                            JAN 23 2014, 8:45 am
                                 IN THE
                       COURT OF APPEALS OF INDIANA

A.J.R.,                                           )
                                                  )
          Appellant-Respondent,                   )
                                                  )
                 vs.                              )       No. 46A03-1306-JV-243
                                                  )
STATE OF INDIANA,                                 )
                                                  )
          Appellee-Petitioner.                    )


                        APPEAL FROM THE LAPORTE CIRCUIT COURT
                            The Honorable Thomas J. Alevizos, Judge
                                Cause No. 46C01-1211-JD-699




                                       January 23, 2014



                                 OPINION - FOR PUBLICATION



ROBB, Judge
                                 Case Summary and Issues

       A.J.R. appeals the juvenile court’s adjudication of A.J.R. as a delinquent based on

conduct that would be criminal mischief, cruelty to animals, and aiding, inducing, or causing

criminal mischief if committed by an adult. He raises three issues on appeal: (1) whether

admission of certain testimony given by a police officer without notice from the State that the

officer would testify as a skilled witness was an abuse of discretion; (2) whether there was

sufficient evidence to prove A.J.R. shot two cattle; (3) assuming he shot the cattle, whether

there was sufficient evidence to prove his acts constituted mutilation or torture of an animal.

We hold that the juvenile court did not abuse its discretion by admitting the officer’s

testimony, and the evidence is sufficient to prove A.J.R. shot two cattle and to sustain his

adjudications for criminal mischief. However, concluding A.J.R.’s actions did not constitute

mutilation or torture of an animal, we reverse his adjudications for cruelty to an animal.

Accordingly, we affirm in part and reverse in part.

                                Facts and Procedural History

       On the evening of November 28, 2012, seventeen-year-old A.J.R. and fourteen-year-

old C.C. were cruising the county roads of LaPorte County while coyote hunting. The two

teenagers had gone hunting together approximately thirty times before. On this particular

occasion, the boys were hunting with a semi-automatic AR-15-style rifle, which was a gift

from C.C.’s father. During the outing, they observed several coyotes but had no success in

killing one. The boys left their hunting location driving A.J.R.’s black Jeep and turned onto

County Road 500 South. They came upon a pasture of cattle, at which point A.J.R. said


                                              2
“let’s shoot those cows.” Transcript Vol. I at 101. A.J.R. turned the vehicle around,

positioning the driver’s side of the vehicle nearest to the pasture. He picked up C.C.’s rifle,

leaned out the driver’s side window, and fired two shots into a herd of cattle.

       A.J.R. then turned left onto County Road 425 West and approached another cattle

pasture on the passenger’s side of the vehicle. A.J.R. stopped the vehicle and told C.C. to

shoot the cattle. C.C. took the rifle and fired one shot out of the passenger window at a cow

approximately ten yards away, striking it in the head.

       The cattle in both pastures were owned by Glen Minich, who lives nearby. Minich

was home that evening and heard what sounded like gunshots coming from close-by. Minich

walked out to his porch and saw a dark-colored vehicle driving slowly down the road. He

observed the vehicle stop next to one of his cattle lots and heard one gunshot ring out from

that direction. After the shot, the vehicle drove away.

       Minich and his wife first drove to the cattle lot on County Road 500 South and found

that two of their cattle had been shot. Both cows were lying on the ground: the first had a

wound on its head and the other had no visible wound but was moaning and unresponsive.

Both cattle were deceased within thirty minutes of the incident.

       While driving to the location of the second shooting, Minich saw a dark-colored Jeep

driving down the road and followed it. The Jeep eventually pulled over, and Minich

identified A.J.R. as the driver. Minich had a brief conversation with A.J.R. during which

A.J.R. denied shooting the cattle. Minich obtained the Jeep’s license plate number and called

the police.


                                              3
       The same evening, both A.J.R. and C.C. made statements to the police. C.C. was

interviewed first. He initially denied any knowledge of the incident but later admitted to

shooting one of the cattle and also implicated A.J.R. A.J.R. was interviewed later and

initially denied any knowledge of the incident; however, after he was informed C.C. made a

statement, A.J.R. admitted to driving the vehicle when the cattle were shot.

       On December 9, 2012, the State alleged A.J.R. was a delinquent juvenile based on acts

that, if committed by an adult, would constitute one count of aiding, inducing, or causing

criminal recklessness, a Class D felony; two counts of criminal recklessness, Class D

felonies; three counts of cruelty to an animal, Class D felonies; two counts of criminal

mischief, Class A misdemeanors; and one count of aiding, inducing, or causing criminal

mischief, a Class A misdemeanor. A two-day fact-finding hearing was held on May 10 and

May 17, 2012. On May 20, 2012, the juvenile court issued an order finding the State had met

its burden of proving A.J.R. committed two counts of cruelty to an animal, two counts of

criminal mischief, and aiding, inducing, or causing criminal mischief. Accordingly, A.J.R.

was adjudicated a delinquent on those counts. The court ordered A.J.R. to serve a thirty-day

suspended jail sentence and probation and to complete fifty hours of community service.

A.J.R. filed a motion to correct error, which was denied. This appeal followed. Additional

facts will be supplied as necessary.




                                             4
                                   Discussion and Decision

                             I.      Skilled Witness Testimony

       A.J.R. challenges the juvenile court’s admission of opinion testimony offered by

LaPorte County Sheriff’s Deputy Troy Ryan at the fact-finding hearing. The admission of

evidence is within the sound discretion of the trial court, and the trial court’s ruling is

reviewed only for an abuse of discretion. Hale v State, 976 N.E.2d 119, 123 (Ind. Ct. App.

2012). An abuse of discretion occurs when the trial court’s decision is clearly against the

logic and effect of the facts and circumstances. Id.

       Indiana Evidence Rule 701 provides that lay witnesses may provide testimony in the

form of opinions or inferences, so long as the testimony is “(a) rationally based on the

perception of the witness and (b) helpful to a clear understanding of the witness’s testimony

or the determination of a fact in issue.” This rule encompasses persons whom the courts have

labeled “skilled witnesses.” Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003). A skilled

witness is a person who possesses specialized knowledge short of that necessary to be

declared an expert under Indiana Evidence Rule 702 but beyond that possessed by an

ordinary juror. Id. “Skilled witnesses not only can testify about their observations, they can

also testify to opinions or inferences that are based solely on facts within their own personal

knowledge.” Hawkins v. State, 884 N.E.2d 939, 944 (Ind. Ct. App. 2008) (citation omitted),

trans. denied. It is within the trial court’s discretion to determine whether a witness is

qualified to give an opinion. Id




                                              5
       Officer Ryan was on duty the night of the incident and investigated the area where the

two shootings occurred. Officer Ryan testified that he was a member of the Emergency

Response Team, and as part of that duty, he handled and was familiar with military-style

equipment such as the M-16 rifle. He testified that he was familiar with the AR-15 style of

rifle used in the shootings, because it and the M-16 are “pretty much the same platform.” Tr.

Vol. I at 58. At the scene of the first shooting, he observed two .233 caliber shell casings—

the same caliber used in C.C.’s rifle—located in the road near the pasture. Officer Ryan

testified that based on the location of the shell casings and the way assault rifles eject shell

casings, it was his opinion that the shots were more likely fired from the driver’s side than

the passenger’s side of a westbound-facing vehicle. A.J.R. essentially makes two arguments

against the admission of Officer Ryan’s opinion testimony. First, he asserts that the

admission of such testimony without prior notice from the State deprived A.J.R. of his

constitutional right to a fair fact-finding hearing. Second, he contends there was insufficient

foundation to allow Officer Ryan’s skilled witness testimony.

       First, A.J.R. asserts that it was fundamentally unfair to permit Officer Ryan to offer

skilled witness testimony without the State providing advance notice to him. He alludes to

his general right to receive a fair fact-finding hearing. U.S. CONST. amend. XIV, § 1 (“[N]or

shall any State deprive any person of life, liberty, or property, without due process of law . . .

.”); see also In re Gault, 387 U.S. 1, 30-31 (1966) (holding the Due Process Clause applies to

juvenile delinquency proceedings). However, A.J.R. offers no additional authority that

would lead us to believe explicit notice of skilled witness testimony is constitutionally


                                                6
required to facilitate a fair trial. He provides no citation to a statute, evidentiary rule, trial

rule, or court decision supporting his argument, and we are aware of none. We note, as the

juvenile court did, that Officer Ryan was identified as an investigating officer on the scene,

and A.J.R. did have notice that Officer Ryan was a potential State’s witness.1 A.J.R.’s

attorney was able to conduct effective cross-examination of Officer Ryan, and A.J.R.’s claim

that a lack of more specific notice hindered his ability to present an adequate defense is

weakened by the fact that he did not request a continuance. Admission of Officer Ryan’s

opinion testimony did not deprive A.J.R. of his right to due process and a fair fact-finding

hearing.

        Alternatively, A.J.R. argues Officer Ryan’s opinion testimony was inadmissible due to

lack of foundation. Specifically, A.J.R. asserts Officer Ryan’s testimony was not “rationally

based on [his] perception,” Ind. Evidence Rule 701, because he did not actually witness the

position of the vehicle or the rifle when the shots were fired. We disagree with the

contention that a proper foundation was not laid. Officer Ryan testified that he has handled

and is familiar with rifles substantially similar to the one used in the shooting. He is familiar

with the ammunition the AR-15 fires and the manner in which shell casings are ejected from

the rifle. Further, Officer Ryan personally observed the location of the shell casings on the



        1
           Claiming notice of Officer Ryan as a potential witness is not enough, A.J.R. makes a novel
argument: failure to specifically provide notice of impending opinion testimony would require defendants to
conduct discovery in violation of their right to remain silent and the right to have the State prove its case
beyond a reasonable doubt. A.J.R. cites no authority for his proposition, nor does he make any discernible
connection between a discovery request and the Fifth Amendment’s protection against compelled testimonial
evidence. Moreover, a defendant’s discovery request in no way changes or shifts the State’s burden to prove
guilt beyond a reasonable doubt.

                                                     7
road at the scene. Based on Officer Ryan’s knowledge of how assault rifles eject shell

casings and the casings’ positioning on the road, he could give an opinion regarding whether

the casings more likely came from the driver’s side or the passenger’s side of a westbound

vehicle. The juvenile court did not abuse its discretion by concluding the State laid a proper

foundation for the testimony.

                                II.   Sufficiency of Evidence

       A.J.R. presents several arguments on appeal challenging the sufficiency of the

evidence supporting his adjudication. When reviewing a claim of insufficient evidence in a

juvenile case, we apply the same standard of review as if it were an appeal of a criminal

conviction. See K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013). We neither reweigh the

evidence nor assess the credibility of witnesses. Id. We consider only the probative evidence

and reasonable inferences supporting the judgment. Id. And the adjudication will be

affirmed if the probative evidence and reasonable inferences drawn therefrom could have led

a reasonable fact finder to find the juvenile guilty beyond a reasonable doubt. Id. The

adjudication shall be reversed “if there is no evidence or reasonable inference to support any

one of the necessary elements of the offense.” Id.

                              A. Evidence A.J.R. Shot Two Cattle

       First, A.J.R. contends that there was insufficient evidence to establish that he shot and

killed two of the cattle owned by Minich. His argument primarily focuses on Officer Ryan’s

testimony and an assertion that the exact position of the vehicle at the time of the first




                                               8
shooting is unknown. However, in making this argument, A.J.R. turns a blind eye to C.C.’s

testimony identifying him as the person who shot at the first herd of cattle.

       “It is well established that the testimony of a single eye witness is sufficient to sustain

a conviction.” Brasher v. State, 746 N.E.2d 71, 72 (Ind. 2001). C.C., an eye witness,

testified against A.J.R. at the fact-finding hearing. Essentially, his testimony was that he saw

A.J.R. pick up the rifle, lean out the window, and fire two shots at the herd of cattle in the

pasture off of County Road 500 South. C.C.’s testimony, combined with the evidence that

two cattle were found injured in the same pasture immediately after the shooting, is sufficient

to prove A.J.R. shot two of the cattle. Therefore, A.J.R.’s adjudications for criminal

mischief, which are founded on his killing of the two cattle, must be affirmed.

                 B. Indiana Code section 35-46-3-12(c): Cruelty to Animals

       A.J.R. also maintains that, even assuming he shot the first two cattle, his adjudications

for animal cruelty cannot stand. On this point, we agree. Based on the language of the

relevant statutes, the evidence most favorable to the juvenile court’s decision is insufficient

to constitute cruelty to an animal.

       “A person who knowingly or intentionally tortures or mutilates a vertebrate animal

commits torturing or mutilating a vertebrate animal, a Class D felony.” Ind. Code § 35-46-3-

12(c). Indiana law defines both “mutilate” and “torture.”

       (3) “Mutilate” means to wound, injure, maim, or disfigure an animal by
       irreparably damaging the animal’s body parts or to render any part of the
       animal’s body useless. The term includes bodily injury involving:
              (A) serious permanent disfigurement;
              (B) serious temporary disfigurement;


                                                9
                (C) permanent or protracted loss or impairment of the function of a
                bodily part or organ; or
                (D) a fracture.

                                           ***

       (5) “Torture” means:
              (A) to inflict extreme physical pain or injury on an animal with the
              intent of increasing or prolonging the animal’s pain; or
              (B) to administer poison to a domestic animal (as defined in section
              12(d) of this chapter) or expose a domestic animal to a poisonous
              substance with the intent that the domestic animal ingest the substance
              and suffer harm, pain, or physical injury.

Ind. Code § 35-46-3-0.5.

       The evidence most favorable to the adjudication is that A.J.R. leaned out of his

window, fired two shots at a herd of cattle approximately fifteen yards away, and

immediately drove away. One cow had a bullet wound on its head, and the other cow had no

visible injury but was moaning and unresponsive. Both cattle died within thirty minutes of

the shooting.

                                     1.      Mutilation

       As to mutilation, the State contends that the gunshot injuries worked to “wound,

injure, maim, or disfigure” two cattle. This is the extent of the State’s mutilation analysis.

The State’s position treats any wound or injury—even an unidentifiable one—as “mutilation”

under the statute. We do not believe the legislature intended such an outcome, because it

would render a large portion of the mutilation definition utterly meaningless. See Adams v.

State, 960 N.E.2d 793, 798 (Ind. 2012) (“Our primary goal in interpreting statutes is to

determine and give effect to the Legislature’s intent.”).


                                             10
        Notably, the State ignores operative, qualifying language in the statute—namely,

language providing that mutilation occurs only when the wound or injury is achieved “by

irreparably damaging the animal’s body parts or to render any part of the animal’s body

useless.” Ind. Code § 35-46-3-0.5(3) (emphasis added); see Adams, 960 N.E.2d at 798

(statutes must be read “as a whole, avoiding excessive reliance on a strict, literal meaning or

the selective reading of individual words.”). The statute then lists examples of sufficient

injuries, including serious disfigurement, impairment of a body part or organ, and a fracture.

Ind. Code § 35-46-3-0.5(3)(A)-(D). Based on a plain reading of the statute, we hold that a

wound or injury must be of the variety contemplated by the statute before it qualifies as

mutilation.2

        Moreover, the statute cannot be fairly interpreted so as to include any injury that

results in the death of an animal. At first blush, one might think there is enough ambiguity in

the statute to allow the phrase “permanent or protracted loss or impairment of the function of

a bodily part or organ” to also encompass the death of an animal. Ind. Code § 35-46-3-

0.5(3)(C). However, we do not believe this to be the appropriate statutory analysis. The

Rule of Lenity dictates that statutes that are criminal or penal in nature must be strictly

construed, and ambiguity must be resolved in favor of the defendant. Dye v. State, 984

N.E.2d 625, 630 (Ind. 2013). Further, “when construing a statute, all sections of an act are



        2
           Although decided prior to the enactment of statutory definitions for “mutilate” and “torture,” this
court held that “the act of shooting [an animal] is not enough alone to establish cruelty to an animal by either
torture or mutilation.” Boushehry v. State, 648 N.E.2d 1174, 1178 (Ind. Ct. App. 1995). We believe that
proposition holds true under the current version of the statute.


                                                      11
viewed together. Additionally, we will avoid an interpretation that renders any part of the

statute meaningless or superfluous.” Zanders v. State, 800 N.E.2d 942, 944-45 (Ind. Ct. App.

2003) (citation omitted). An interpretation of the cruelty to animals provision that would

automatically qualify any injury resulting in the death of an animal as “mutilation” would

forsake other provisions of the Indiana Code to a position of meaninglessness. This is

because other portions of our statutory scheme already deal with the killing of animals.

Subsection (d) of the very statute under which A.J.R. was charged provides it is a Class D

felony if a person “knowingly or intentionally kills a domestic animal without the consent of

the owner . . . .” Ind. Code § 35-46-3-12(d).3 And statutory penalties are also provided for

those who harass, hunt, capture, or kill a wild animal in violation of the article regulating fish

and wildlife in Indiana. See generally Ind. Code §§ 14-22-1-1 through 14-22-41-12; see also

Ind. Code § 14-22-34-5; Ind. Code § 14-22-38-1 to -5 (specifically dealing with violations).

        To clarify, our interpretation does not necessarily foreclose the possibility that a fatal

injury may qualify as mutilation. For example, a person who knowingly or intentionally

severs the limb of a wild animal which subsequently bleeds to death as a result of the injury

would have mutilated that animal. We echo, however, our overarching principle: the type of

injury is a key component of and necessary condition to making a determination of

mutilation.




        3
           Domestic animals include “cattle, calves, horses, mules, swine, sheep, goats, dogs, cats, poultry,
ostriches, rhea, and emus . . . [and] animal[s] of the bovine, equine, ovine, caprine, porcine, canine, feline,
camelid, cervidae, or bison species.” Ind. Code § 35-46-3-12(d).

                                                     12
       Here, there is no evidence that A.J.R. targeted either cow in a way that would result in

serious disfigurement, protracted impairment of a body part or organ, or a fracture. He did

not purposely shoot its legs, gouge out its eyes, sever a limb or tail, or perform any other act

resulting in damage to the animal that could reasonably fall within the definition of

mutilation. Rather, the injury to one cow was a small bullet wound to the head, while the

injury sustained by the second cow was not even identifiable. The evidence in this case

cannot reasonably fit within the statutory definition of mutilation, and the State offers no real

argument that it does.

                                        2.      Torture

       The evidence in this case also falls short of establishing that A.J.R. knowingly or

intentionally tortured either of the cattle. Contrasting our determination regarding mutilation,

which relies on statutory interpretation and the conclusion that the injuries in this case do not

fall within the scope of the statute, our conclusion that torture was not established is based

upon a failure to prove A.J.R. acted with the requisite mens rea.

       The State argues that “[b]y shooting cows and then abandoning them without regard to

whether they lived or died, the court as factfinder could reasonably determine that [A.J.R.]

would have been aware of the high probability that he was inflicting injury and pain.” Brief

of Appellee at 14. We do not quarrel with the proposition that a reasonable person could

infer that either animal was injured or experiencing pain after it was shot. See Tooley v.

State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009) (holding a fact finder could reasonably

infer a cat suffered pain after being drop-kicked by a man wearing a steel-toed boot, despite


                                               13
that the cat could not testify as to its pain and the cat was never examined), trans. denied.

However, once again, the State disregards key language in the controlling statute. Torture

means to “inflict extreme physical pain or injury on an animal with the intent of increasing or

prolonging the animal’s pain.” Ind. Code § 35-46-3-0.5(5) (emphasis added). A person acts

intentionally “if, when he engages in the conduct, it is his conscious objective to do so.” Ind.

Code § 35-41-2-2(a). The evidence in this case does not support an inference that A.J.R.’s

objective in shooting the cattle was to increase or prolong their pain, and it certainly was not

proven beyond a reasonable doubt.

       The State’s brief goes on to specifically discuss A.J.R’s mental state:

       [T]he court could reasonably infer both that [A.J.R.] would have known (1)
       that shooting a cow with an assault rifle would injure the cow and (2) that
       there is a possibility that the cow would not die instantly. . . . [T]he
       commonsense reality [is] that a seventeen-year-old would know that a [high-
       powered rifle] is capable of both injuring an animal and killing an animal . . . .

Br. of Appellee at 16 (emphasis added). This argument’s shortfalls are apparent. Knowledge

of the mere possibility that an animal will not die instantly does not amount to a conscious

objective of increasing or prolonging extreme physical pain.

       Moreover, the State’s theory is that A.J.R. shot the cattle and drove away without

knowing (or caring) whether they lived or died. If anything, those facts stand in direct

contradiction to the idea that A.J.R.’s objective was to prolong the animals’ pain. To put it

simply, he could not harbor such an objective without also knowing the cattle were alive and

suffering.




                                              14
        Because the definition of torture requires the sort of specific intent highlighted above,

facts indicating A.J.R. recklessly or randomly fired into the herd of cattle would not support a

finding of torture here. This leaves only one possibility that could support the juvenile

court’s finding: A.J.R. knew where the cattle were injured at the time he shot and drove

away and that their injuries would result in increased or prolonged suffering. “Knowledge

and intent are both mental states and, absent an admission by the defendant, the trier of fact

must resort to the reasonable inferences from both the direct and circumstantial evidence to

determine whether the defendant has the requisite knowledge or intent to commit the offense

in question.” Stokes v. State, 922 N.E.2d 758, 764 (Ind. Ct. App. 2010), trans. denied. In

this case, there is neither an admission by A.J.R. nor direct evidence from C.C. suggesting

A.J.R. intended to torture the cattle, so the juvenile court could only rely on circumstantial

evidence. As to one cow, an inspection by the owner and police revealed no visible wound;

thus, we do not believe a reasonable inference can be drawn that A.J.R. knew the location of

the wound or its effect when firing from a distance of fifteen yards away.4 The second cow

sustained a wound to the head. Assuming A.J.R. knew he shot the second cow in the head,

one could not reasonably infer his objective was to torture the animal. Just the opposite

would be true, as the reasonable inference would be that A.J.R. intended to kill the animal

instantly.

        In sum, the evidence presented in this case is not sufficient to allow a reasonable fact




        4
          We recall C.C.’s testimony, in which he admitted to shooting one cow from approximately the same
distance as A.J.R. but was unable to see where he hit the cow.

                                                   15
finder to conclude beyond a reasonable doubt that A.J.R. shot either of the cattle “with the

intent of increasing or prolonging the animal’s pain.” Nor is the evidence sufficient to place

the injuries in this case within the statutory definition of mutilation. Therefore, his

adjudications for cruelty to an animal cannot stand.

                                     Conclusion

       We conclude the juvenile court’s admission of Officer Ryan’s skilled witness

testimony did not violate A.J.R.’s right to a fair fact-finding hearing. As to the evidence

presented against A.J.R., we conclude there was sufficient evidence to prove he shot and

killed two cattle; however, the evidence in this case was not sufficient to prove he mutilated

or tortured either of the cattle. Hence, his adjudications for criminal mischief and aiding,

inducing, or causing criminal mischief are affirmed, but his adjudications for cruelty to an

animal are reversed.

       Affirmed in part and reversed in part.

BARNES, J., concurs.

BROWN, J., concurs in result.




                                             16
