FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                         GREGORY F. ZOELLER
Marion County Public Defender                 Attorney General of Indiana
Indianapolis, Indiana
                                              NICOLE M. SCHUSTER
                                              Deputy Attorney General

                                                                            FILED
                                              Indianapolis, Indiana

                                                                       Aug 31 2012, 9:36 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                 CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




ALICE LEE,                                    )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A02-1112-CR-1090
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Marc T. Rothenberg, Judge
                           Cause No. 49F09-1008-FD-61390



                                   August 31, 2012


                             OPINION - FOR PUBLICATION


KIRSCH, Judge
      Alice Lee (“Lee”) appeals her conviction for attendance at an animal fighting

contest1 as a Class A misdemeanor. On appeal, Lee raises the following restated issue:

whether     Indiana     Code     section   35-46-3-10,   which   defines   the   offense,   is

unconstitutionally vague.

      We affirm.

                          FACTS AND PROCEDURAL HISTORY

      On August 6, 2010, Tyrus Williams (“Williams”) and Shinitara Kemp (“Kemp”)

hosted a dog fight in the garage at their home on West 60th Street in Indianapolis. The

fight began around 10:00 p.m. Once the fight was underway, a confidential informant

who was attending the event alerted the police.          At approximately 10:20 p.m., law

enforcement officers used their previously obtained “no-knock” warrant to enter the

house and the attached garage. Tr. at 23.

      Inside the house and garage, officers found pit bulls and a room devoted to the

training and care of fighting dogs.        The garage contained a fighting ring with two

exhausted dogs fighting in it and approximately twenty-four spectators, including Lee.

Police found Lee’s pit bull in her vehicle in the driveway of the residence. The other

guests’ vehicles were parked in the driveway of the residence and on the grass.

      On August 10, 2010, the State charged Lee with (1) Class D felony promotion of,

use of animal at, or attendance with animal at an animal fighting contest, and (2) Class A

misdemeanor attendance at an animal fighting contest. At trial, Lee claimed that she had


      1
          See Ind. Code § 35-46-3-10.


                                                2
been at the home only fifteen minutes before the police arrived because she was picking

up her pit bull from Williams and Kemp, who had been watching her dog for a few days.

Lee denied any knowledge of the dog fighting contest or of training fighting dogs. She

claimed the police discovered her in the garage within the fighting area only because she

fled from the house into the garage when she realized the police had arrived.

       Lee’s bench trial commenced on October 24, 2011, and after the State rested, Lee

moved for an involuntary dismissal as to both counts. The trial court granted Lee’s

motion for involuntary dismissal on the Class D felony, but found her guilty of Class A

misdemeanor attendance at an animal fighting contest. Lee now appeals.

                             DISCUSSION AND DECISION

       Lee contends that Indiana Code section 35-46-3-10 is unconstitutionally vague

because its language fails “to inform an ordinary person of what conduct is prohibited.”

Appellant’s Br. at 7. Additionally, Lee contends that the statute authorizes or encourages

arbitrary or discriminatory enforcement. Id. at 9. The State responds by contending that

Lee waived this issue when she failed to file a motion to dismiss, advancing the

contention of unconstitutionality, before the trial court. Appellee’s Br. at 4.

       Addressing the State’s contention of waiver first, we agree that generally the

failure to file a proper motion to dismiss raising a constitutional challenge waives the

issue on appeal. Baumgartner v. State, 891 N.E.2d 1131, 1135 (Ind. Ct. App. 2008)

(citing Ind. Code §§ 35–34–1–6 and –4). Thus, Lee’s claim is waived. However, even

considering Lee’s vagueness argument on the merits, her claim fails.

       Whether a statute is unconstitutional is a question of law and is reviewed de novo.

                                              3
Shepler v. State, 758 N.E.2d 966, 968 (Ind. Ct. App. 2001), trans. denied (2002).

Appellate courts approach such questions with the presumption that the statute is

constitutional, and the challenger is burdened to prove otherwise. Lock v. State, 971

N.E.2d 71, 74 (Ind. 2012). “Any reasonable doubts and constructions as to the statute’s

validity are resolved in favor of constitutionality.” Id. (citing State v. Lombardo, 738

N.E.2d 653, 655 (Ind. 2000)).

       “A fundamental aspect of our nation’s jurisprudence is that criminal statutes must

give a person of ordinary intelligence fair notice that his contemplated conduct is

forbidden so that no man shall be held criminally responsible for conduct which he could

not reasonably understand to be proscribed.”          Id. (internal quotations omitted).

Accordingly, our Supreme Court has said that “due process requires that a penal statute

‘clearly define its prohibitions.’” Id. (quoting Brown v. State, 868 N.E.2d 464, 467 (Ind.

2007)). “If it fails ‘to provide notice enabling ordinary people to understand the conduct

that it prohibits’ or ‘authorizes or encourages arbitrary or discriminatory enforcement’

then it is subject to invalidation.” Id. at 74-75 (quoting Brown, 868 N.E.2d at 467).

“Additionally, ‘there must be something in a criminal statute to indicate where the line is

to be drawn between trivial and substantial things so that erratic arrests and convictions

for trivial acts and omissions will not occur.’” Id. (quoting State v. Downey, 476 N.E.2d

121, 123 (Ind. 1985)). “‘It cannot be left to juries, judges, and prosecutors to draw such

lines.’” Id. (quoting Downey, 476 N.E.2d at 123).

       The following sections of the Indiana Code are pertinent to our analysis. Indiana

Code section 35-46-3-10, in pertinent part, provides: “A person who knowingly or

                                            4
intentionally attends a fighting contest involving animals commits cruelty to an animal, a

Class A misdemeanor.” (Emphasis added). “[An] ‘animal fighting contest’ means a

conflict between two (2) or more animals. The term does not include a conflict that is

unorganized or accidental.” Ind. Code § 35-46-3-4. Indiana Code section 35-46-3-3

provides: “As used in this chapter, “animal” does not include a human being.”

        Lee contends that the word “attends” is so vague as to make the statute

unconstitutional. Lee suggests that various meanings of the word have criminalized

“being present at, taking care of, providing services at, watching over, or paying attention

to a fighting contest involving animals.” Appellant’s Br. at 8. She further suggests that

the vagueness of the statute has made it unclear whether it is a crime to watch a dog fight

on the internet, watch the simulation of a dog fight made for a movie, watch a friend feed

a mouse to his pet snake, or attend a circus and watch a man box with a kangaroo or

wrestle with a bear. However, the statute as written makes clear the answer to each of

these questions. The word “animal” does not involve a human being, therefore, watching

a human fight or wrestle any animal would not fall within the prohibitions of Indiana

Code section 35-46-3-10, which requires a conflict between two or more animals.2 Most

dog fights viewed on the internet would not fall within the prohibitions of section 35-46-

3-10 because the person could not be said to be attending the fight in the traditional sense

        2
           We do not address whether this activity would fall within the prohibitions of Indiana Code
section 35-46-3-12, which prohibits the beating of vertebrate animals or Indiana Code section 35-46-3-7
which prohibits the abandonment or neglect of vertebrate animals. Likewise we do not address whether
this activity would fall within the exception that the chapter does not apply to “Conduct not resulting in
serious injury or illness to the animal that is incidental to exhibiting an animal for show, competition, or
display, or that is incidental to transporting the animal for show, competition, or display.” Ind. Code §
35-46-3-5(a)(13).


                                                     5
of the word.3 Likewise, a person who watches his friend feed a mouse to a snake is not

watching an organized event, and a simulated fight between animals that, presumably, are

not hurt, could not truly be said to be an animal fighting contest.

         As applied to this offense, Lee’s vagueness argument amounts to claiming that the

statute’s failure to further define “attend” authorizes the prosecution of anyone who is in

the vicinity of an animal fighting contest without regard to their intent. However, in

determining whether a statute is unconstitutionally vague, this court is mindful that “[n]o

statute need avoid all vagueness, and ‘because statutes are condemned to the use of

words, there will always be uncertainties for we cannot expect mathematical certainty

from our language.’” Logan v. State, 836 N.E.2d 467, 473 (Ind. Ct. App. 2005) (quoting

Helton v. State, 624 N.E.2d 499, 507 (Ind. Ct. App. 1993), trans. denied, cert. denied,

520 U.S. 1119 (1997)), trans. denied (2006). Here, it is a sufficiently-clear warning to

say that criminal liability attaches to someone who knowingly or intentionally attends an

animal fighting contest. As the standard implies, cases will be decided on their own

facts.

         Lee also contends that the statute in question invites arbitrary enforcement.

Appellant’s Br. at 9. Intent may be proved by circumstantial evidence. E.H. v. State, 764

N.E.2d 681, 683 (Ind. Ct. App. 2002) (citing Johnson v. State, 593 N.E.2d 208, 209 (Ind.

Ct. App. 1992)), trans. denied. Intent can be inferred from a defendant’s conduct and the

natural and usual sequence to which such conduct logically and reasonably points. Id.


         3
          We reserve for another day the question of whether a person who pays to watch an animal fight
live on the internet can be said to be attending an animal fighting contest.

                                                  6
The fact finder is entitled to infer intent from the surrounding circumstances. Id. at 683.

This does not mean that the finding of intent, and thus enforcement, is arbitrary. As our

Supreme Court noted in Brown v. State, “‘there must be something in a criminal statute to

indicate where the line is to be drawn between trivial and substantial things so that erratic

arrest and convictions for trivial acts and omissions will not occur.’” 868 N.E.2d at 467

(quoting Downey, 476 N.E.2d at 123). Here, there is no such concern. The statute under

which Lee was charged “convey[ed] sufficiently definite warning[s] as to the proscribed

conduct when measured by common understanding.” Rhinehardt v. State, 477 N.E.2d

89, 93 (Ind. 1985), overruled on other grounds, Stout v. State, 528 N.E.2d 476 (Ind.

1988). Further, it “provided[d] a constraining and intelligible enforcement standard for

those charged with enforcing the statutes.” Johnson v. State, 648 N.E.2d 666, 670 (Ind.

Ct. App. 1995) (citing Price v. State, 622 N.E.2d 954, 967 (Ind. 1993)).

       Lee has failed to carry her “heavy burden” of proving that Indiana Code section

35-46-3-10 is unconstitutionally vague. The evidence supports the trial court’s judgment

of guilt.

       Affirmed.

NAJAM, J., and MAY, J., concur.




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