FOR PUBLICATION


ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

SAMUEL J. BEASLEY                           GREGORY F. ZOELLER
Muncie, Indiana                             Attorney General of Indiana

                                            CHANDRA K. HEIN
                                            Deputy Attorney General
                                            Indianapolis, Indiana

                                                                      May 07 2014, 9:31 am

                            IN THE
                  COURT OF APPEALS OF INDIANA

RAHSAAN A. JOHNSON,                         )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )     No. 18A02-1304-CR-343
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE DELAWARE CIRCUIT COURT
                      The Honorable Marianne L. Vorhees, Judge
                           Cause No. 18C01-1204-FD-88



                                    May 7, 2014

                            OPINION - FOR PUBLICATION

RILEY, Judge
                                   STATEMENT OF THE CASE

        Appellant-Defendant, Rahsaan A. Johnson (Johnson), appeals his conviction of

fourteen Counts of possession of animals for fighting contests, Class D felonies, Ind. Code

§ 35-46-3-8.

        We affirm.

                                                 ISSUES

        Johnson raises two issues on appeal, which we restate as follows:

       (1) Whether there is sufficient evidence beyond a reasonable doubt to support

           Johnson’s conviction of possession of animals for fighting contests; and

       (2) Whether Johnson’s conviction of fourteen Counts of possession of animals for

           fighting contests violates the double jeopardy clause of the Indiana Constitution.

                            FACTS AND PROCEDURAL HISTORY1

        On March 19, 2012, two crates were shipped from the Dominican Republic and

arrived at the Indianapolis International Airport a day later. The importer, Johnson,

traveled from his home in Muncie, Indiana to Indianapolis to pick up his cargo from the

Customs Office. Inside of each crate was a live dog. A Customs agent noticed that the

dogs were covered in bite marks and scars and were clearly in very poor health, so as

Johnson waited for Customs to clear his shipment, the Customs agent contacted Homeland

Security Investigations and the Animal Plant Health Inspection Service. Both agencies




1
  We note that nearly every citation to the Transcript in Johnson’s appellate brief is incorrect. It is an
inefficient use of this court’s resources to search through more than 1300 pages to locate the referenced
information.

                                                     2
declined to investigate the matter, so the Customs agent requested assistance from the

Indianapolis Airport Police. Johnson explained that the dogs were family pets, and

although Customs eventually released the dogs to Johnson, the Assistant Chief of the

Airport Police contacted the Muncie Police Department to report his observations and

concerns about Johnson’s dogs.

      Approximately one week later, on March 28, 2012, the Muncie Animal Shelter

(Shelter) received a report from the City Building Commissioner of dogs barking from

inside an apparently abandoned trailer located at 2407 North Blaine Street. The next day,

the Shelter’s superintendent, Phillip Peckinpaugh (Peckinpaugh), went to the reported

address to investigate the complaint. When Peckinpaugh arrived at the mobile home, it

appeared that nobody was there. Through a dilapidated fence, Peckinpaugh observed six

dogs chained up in the back yard. In addition to the heavy tow chains restraining the dogs,

Peckinpaugh noticed that most of the dogs had severe scarring on their faces, one was

tangled up and unable to move, and none had any food or water. Peckinpaugh also heard

the sounds of other dogs coming from inside the garage and the residence. At this point,

he called the Muncie Police Department. The police officers arrived on scene and, after

observing the exterior of the property and speaking with Peckinpaugh, obtained a warrant

to search the mobile home.

      Once inside, Peckinpaugh and the police officers were greeted by the

“overpowering” scent of “feces and urine.” (Transcript p. 468). The trailer, which did not

have running water, was in shambles.        In each room of the narrow mobile home,

Peckinpaugh and the officers discovered dog cages stacked and crammed into every

                                            3
available space. Most of the plastic and metal cages housed a dog, but other broken cages

were also strewn about the filthy house and yard. While there were bowls stashed on top

of some of the dog cages, none of the animals had any food or water. The cages, some of

which were too small to accommodate the dog living inside of it, were lined with soiled

newspapers. Likewise, the garage was filled with caged dogs. After Peckinpaugh and the

other Shelter employees removed the dogs from the premises, the police officers further

investigated the scene. They seized twenty-two plastic and metal cages; three treadmills

designed or modified for dog use; multiple harnesses, leads, cloth and leather muzzles, and

weighted collars; and various containers and buckets of pet care products and supplements,

including Penicillin, wound ointment, Epsom salt, iron supplements, vitamins, weight

boosting supplements, and syringes.

        From the mail found inside the residence, the police officers ascertained that the

trailer belonged to Johnson. Johnson, who did not live in the mobile home, had leased the

property for $200 per month for the sole purpose of quartering his dogs.2 Despite the lease

agreement’s prohibition of “pets or other animals[,]” a total of twenty-five dogs were

confiscated from the property, including the two imported from the Dominican Republic

nine days earlier. (State’s Exh. 27, p. 76). All of the dogs were American Staffordshire

Terriers or a mix of the breed, which are more commonly referred to as pit bulls. The dogs

ranged in age from approximately five weeks to eight years, included both males and

females, and were not neutered or spayed.


2
  The residence and yard were left in such a deplorable state that, following the removal of the dogs, city
officials condemned the mobile home and ordered that the landlord incur the expense of its demolition.

                                                     4
       Within the two weeks following the dogs’ removal, two veterinarians, Dr. Teresa

Calvert (Dr. Calvert) and Dr. Roger Smith (Dr. Smith), volunteered their time and

respectively examined eleven and fourteen of the dogs. In addition to their observations

of scarring, scabbing, lacerations, and penetrating wounds on nineteen of these dogs, Dr.

Calvert and Dr. Smith noted findings that included: thin/underweight dogs with muscle

waste and prominent rib, spine, and hip bones; fungal and yeast infections; untreated

“cherry eyes”; inflammation; torn dew claws; being down on their pasterns as the result of

malnutrition and lack of exercise; bow-leggedness and other orthopedic conditions and

deformities; and parasites, worms, and mange. Both veterinarians testified that the wounds

and scarring were consistent with dog-fighting injuries. While the veterinarians described

the specific maladies of each dog, the condition of Dog 1—as he was referred to throughout

the trial—was particularly gruesome. As x-rays demonstrated, a large, open puncture

wound on the dog’s cheek had become so infected that the entire left side of the dog’s head

was drastically swollen. Along with the “open puncture/draining wounds[,]” Dr. Smith

noted that there were numerous other scars in various stages of healing all over the dog’s

face, trunk, and forelegs. (State’s Exh. 34, p. 86). Dog 1 was euthanized only six days

after his removal from the trailer.

       At the Shelter, an animal behaviorist, a pit bull rescue group, and a team from the

American Society for the Prevention of Cruelty to Animals (ASPCA) evaluated the dogs’

temperaments.     In addition to being timid around humans, many of the dogs were

exceptionally aggressive, especially toward other animals. In fact, one of the pit bulls

escaped from her kennel and killed another dog. Although the Shelter endeavored to place

                                            5
all of the confiscated pit bulls into adoptive homes, those that were too aggressive to

function in “a normal pet society” were euthanized. (Tr. p. 676).

       On April 13, 2012, the State filed an Information but subsequently dismissed and

amended several of the charges. Ultimately, the State charged Johnson with fourteen

Counts of possession of animals for fighting contests, Class D felonies, I.C. § 35-46-3-8;

two Counts of purchasing animals for fighting contests, Class D felonies, I.C. § 35-46-3-

8; one Count of promoting an animal fighting contest, a Class D felony, I.C. § 35-46-3-9.5;

and nine Counts of cruelty to an animal, Class A misdemeanors, I.C. § 35-46-3-7(a). With

the exception of the charge for promoting an animal fighting contest, each of the other

twenty-five Counts correlated with one particular dog.

       On April 23, 2012, pursuant to Indiana Code section 35-46-3-6(e), the trial court

ordered the State Veterinarian to conduct an investigation of the condition of the animals

seized from Johnson’s lot. The State Veterinarian subsequently appointed Dr. Melissa

Justice (Dr. Justice), a field veterinarian for the Indiana State Board of Animal Health, to

evaluate the dogs. On April 30, 2012, when Dr. Justice traveled to Muncie to examine the

animals, only five dogs remained at the Shelter as the rest had been adopted or euthanized.

In the dogs she examined, Dr. Justice found extensive scarring and wounds at various

stages of healing on three of the dogs, which she testified were consistent with dog bites.

Dr. Justice’s findings also included low body weights and skittish demeanors in some of

the dogs. Based on Dr. Justice’s review of all of the evidence, she opined that the dogs

“were in jeopardy prior to being removed” from Johnson’s custody. (Tr. p. 446). By the



                                             6
end of May 2012, thirteen of the dogs had been adopted, and twelve were euthanized for

either medical or temperament reasons.

       On October 19, 2012, Johnson filed a motion to dismiss all twenty-six of the charges

against him. He alleged that his constitutional rights had been violated because the dogs

were either euthanized or adopted without the court’s permission and without first

providing him an opportunity to have the animals examined by his veterinarian, thus

inhibiting his ability to form a proper defense. Following a hearing, the trial court denied

Johnson’s motion to dismiss on October 25, 2012.

       A six-day jury trial commenced on October 29, 2012. When the State rested its

case-in-chief, Johnson moved for a directed verdict. In response, the trial court dismissed

the sole Count of promoting an animal fighting contest on double jeopardy grounds, as well

as two Counts of animal cruelty due to insufficient evidence. On November 5, 2012,

following the close of the evidence, the jury returned a verdict of guilty on all fourteen

Counts of possession of animals for fighting contests and the remaining seven Counts of

animal cruelty. The jury found Johnson not guilty of the two Counts of purchasing animals

for a fighting contest. Immediately thereafter, the trial court entered a judgment of

conviction for fourteen Class D felonies and seven Class A misdemeanors.

       On March 1, 2013, the trial court held a sentencing hearing. The trial court

sentenced Johnson to a term of three years for each of the fourteen Counts of possession

of animals for fighting contests, to be served concurrently. For the seven Counts of animal

cruelty, Johnson received concurrent one-year sentences. The trial court ordered that the

one-year terms be served consecutively to the three-year terms for an aggregate sentence

                                             7
of four years, all executed in the Indiana Department of Correction. Thereafter, Johnson

posted a bond and has deferred his incarceration pending appeal.

       Johnson now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                               I. Sufficiency of the Evidence

                                  A. Standard of Review

       Johnson first claims that there is insufficient evidence to sustain his conviction of

possession of animals for fighting contests. Our standard of review for sufficiency of the

evidence cases is well established. Our court will not reweigh evidence or assess the

credibility of witnesses, and we will consider only the evidence most favorable to the

verdict, along with any reasonable inferences that may be drawn therefrom. Clemons v.

State, 987 N.E.2d 92, 95 (Ind. Ct. App. 2013). As long as the evidence and all derivative

inferences “constitute substantial evidence of probative value to support the judgment[,]”

we will affirm the conviction. Id. Where a conviction is based, at least in part, on

circumstantial evidence, the “evidence need not overcome every reasonable hypothesis of

innocence.” Id. “Reversal is appropriate only when reasonable persons would not be able

to form inferences as to each material element of the offense.” Id.

                     B. Possession of Animals for Fighting Contests

       Under Indiana law, it is a Class D felony if an individual “knowingly or intentionally

purchases or possesses an animal for the purpose of using the animal in an animal fighting

contest.” I.C. § 35-46-3-8. An “animal fighting contest” is defined as “a conflict between

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

                                             8
accidental.” I.C. § 35-46-3-4. Johnson was convicted of fourteen Counts of this offense.3

This statute does not require the State to prove that Johnson hosted an animal fight or that

he ever used the dogs in an animal fighting contest; rather, Johnson’s intended purpose in

possessing the pit bulls is the pertinent consideration. See, e.g., I.C. §§ 35-46-3-9 to -10.

It is well established that “[i]ntent may be proved by circumstantial evidence [and] can be

inferred from a defendant’s conduct and the natural and usual sequence to which such

conduct logically and reasonably points.” Lee v. State, 973 N.E.2d 1207, 1210 (Ind. Ct.

App. 2012) (citation omitted), trans. denied. “The fact finder is entitled to infer intent from

the surrounding circumstances.” Id.

          Johnson concedes that the testimony of the three veterinarians and Terry Mills

(Mills), the ASPCA’s Director of Blood Sports Investigations, in conjunction with the

paraphernalia recovered from the trailer, “could reasonably support the inference by the

jury that the animals had been involved in animal fighting in the past.” (Appellant’s Br. p.

18). However, according to Johnson,

          this is not enough. It must be demonstrated in some way that [] Johnson
          maintained the purpose to fight his animals at some future time, and the
          method of proof must be more than they were used in animal fighting contests
          in the past, so the inference is made that the individual in possession intends
          to use them in that way in the future.

(Appellant’s Br. p. 18).

          To date, there is only one appellate decision concerning the sufficiency of the

evidence used to obtain a conviction pursuant to Indiana Code section 35-46-3-8. In



3
    Johnson does not challenge his conviction of seven Counts of cruelty to an animal.

                                                     9
Clemons, 987 N.E.2d at 95, Clemons was convicted of possessing animals to use in animal

fighting contests. Despite Clemons’ argument that there was no evidence that he had

actually participated in a cockfight, our court found overwhelming evidence that Clemons

knowingly or intentionally possessed “battle cocks” for fighting purposes. Id. at 95-96. In

addition to the 193 roosters and hens recovered from Clemons’ property at a ratio of two

or three roosters for every hen, which is “indicative of a cockfighting operation,” the

evidence revealed that a majority of the roosters had been “dubbed” to prevent their wattles

and combs from excessive bleeding; fifty of the roosters were tethered to cages with their

food and water placed on top of barrels; many of the roosters had shortened spurs; and

cockfighting gear such as magazines, training regimens, grooming tools, medicines, and

dietary supplements were discovered in Clemons’ possession. Id. Although Clemons

attempted to characterize the evidence as tools and techniques used by legitimate bird

breeders, the totality of the circumstances established that those roosters were slated to

fight. Id. at 96.

       We find the present situation to be analogous to Clemons. There is no direct

evidence of Johnson engaging these dogs in an actual, organized dog fight, and it is

undisputed that there were no “dog fighting pits” on the property.           (Tr. p. 734).

Nevertheless, the record reveals that Johnson accumulated twenty-five pit bulls, fourteen

of which are the subjects of these charges. Three veterinarians testified that, among other

ailments, all fourteen of these dogs were covered in scars, scabs, and puncture wounds at

various stages of healing. Furthermore, all of the veterinarians stated that the bite marks

and wounds—which were primarily concentrated on the dogs’ faces, ears, front legs, necks,

                                            10
and chests—were consistent with injuries that would be sustained in a dog fight. Likewise,

Mills testified that in a dog fight, “the most consistent injuries are in the front of the dog,

the chest, and the forearms and the muzzle area and ears.” (Tr. p. 760).

        As in Clemons, the presence of paraphernalia further supports a finding that Johnson

was conditioning the pit bulls to fight. Police officers seized dog treadmills, weighted

harnesses and collars, and various types of weight-boosting and performance-enhancing

supplements, all of which are commonly used to train dogs for a fight. See I.C. § 35-46-3-

4.3 (defining “animal fighting paraphernalia”). Johnson correctly posits that there is

nothing illegal about merely possessing dog treadmills and harnesses. If the evidence had

otherwise consisted of a muscular, healthy, well-nourished and confident pit bull, the

paraphernalia would likely be insignificant to uphold his conviction, but such is not the

case. Moreover, Mills, who was involved in eighty-six dog fights during an eighteen-

month undercover operation with the FBI, explained that following a fight, the dog

handlers do not take their dogs to a veterinarian. Instead, the handlers personally treat the

dogs’ injuries. To this end, the police officers found five bottles of Penicillin, syringes,4

and several types of wound spray and ointment in Johnson’s trailer.

         Johnson attempts to distinguish his case from Clemons, citing the fact that Clemons

had discussed the desirable qualities of cockfighting roosters with the director of the

humane society, who was posing as an interested buyer, and that Clemons had been




4
 Johnson testified that he used the syringes to give the puppies their shots and to administer dietary
supplements, but the jury also heard the veterinarians’ findings that the puppies were infested with
parasites and worms.

                                                    11
featured in a cockfighting trade journal giving advice on aggressive bird breeding.

However, Johnson fails to note that Clemons had admitted to participating in cockfighting

in the past but maintained that he adhered to Indiana law and limited his activities to selling,

buying, and breeding roosters. Clemons, 987 N.E.2d at 93-94. Contrary to Johnson’s

argument that the dogs’ fighting history cannot be indicative of their future purpose, the

Clemons court found the evidence that the roosters had been used to fight in the past,

combined with the fighting paraphernalia, was sufficient to uphold Clemons’ conviction.

We find the same rationale applies in Johnson’s case.

       We also find little merit in Johnson’s endeavor to shift the blame for the dogs’

shocking conditions. With the exception of one dog, which Johnson claimed had received

facial scars by chewing through the metal siding of the garage, Johnson testified that all of

the other dogs were in perfect health, having no scars or injuries, at the time they were

confiscated. Per Johnson, these dogs sustained their scars because the Shelter allowed

them to fight, and the Shelter failed to provide the animals with proper nourishment. Even

if we could fathom these accusations, it is not the role of our court to assess witness

credibility or weigh the evidence. See Fuller v. State, 674 N.E.2d 576, 578 (Ind. Ct. App.

1996). Thus, it was well within the province of the jury to believe the concurring testimony

of three veterinarians, an ASPCA blood sport expert, multiple police officers, and the

Shelter’s superintendent.

                                     C. Other Purposes

       Johnson contends that the evidence is insufficient to prove his intent because “there

are non-animal fighting reasons to maintain possession of the animals, as well as the

                                              12
paraphernalia.” (Appellant’s Br. p. 19). During the trial, Johnson explained that he kept

twenty-five pit bulls in an otherwise abandoned trailer in order to enter the pit bulls into

conformation and weight-pulling competitions, which are legal activities. Johnson also

maintained that some of the dogs were strictly used for breeding purposes or for

companionship. In support of his position, Johnson submitted photographs of some

ribbons and trophies as “examples of things [he had] won” at dog shows and stated that he

had been training two of the dogs for a weight-pulling competition that was scheduled to

occur one month after the dogs were seized. (Tr. p. 985). As such, Johnson explained that

he had been using the four-pound weighted collars to condition the dogs to pull a half-ton

payload and that he was feeding the dogs a special diet to reduce them to their lowest

weight while still building muscle. With respect to his breeding claim, Johnson submitted

several photographs depicting a few of the dogs in the act of mating.

       We find that Johnson’s arguments amount to a request to reweigh the evidence,

which we decline to do. See Clemons, 987 N.E.2d at 96. The record contains sufficient

contradictory evidence of Johnson’s illicit purpose for keeping twenty-five caged pit bulls,

and “reasonable minds could reach the inferences drawn by the jury.” Fuller, 674 N.E.2d

at 578. As both Dr. Justice and Mills explained, weight-pulling contests necessitate

healthy, heavily muscular dogs. Mills also described how dog handlers must ensure their

dogs do not exceed a specific predetermined fight weight, and although weight-pulling

contests do not generally include dogs covered in scars, some dog handlers do participate

“as a cover for their dog fighting.” (Tr. p. 770). Johnson, who was previously cited while

living in New Jersey for failing to provide dogs with food and water, specified that he

                                            13
regularly took photographs of the dogs’ activities in order to defend himself against

accusations such as those at hand. Yet, he stated that he did not keep records of the puppy

litters, dog sale/exchange transactions, or pedigrees; nor did he offer a single photograph

of his dog(s) participating in a competition.

       We do not dispute Johnson’s assertion that “millions of Hoosiers own animals, and

the vast majority of them would never dream of using them in an animal fighting contest.”

(Appellant’s Br. p. 19). It is clear from the evidence, however, that Johnson is not included

among this majority of Hoosiers. Accordingly, we find that there was sufficient evidence

for the jury to determine that Johnson possessed these fourteen pit bulls for the purpose of

animal fighting. Fortunately for Johnson, the Indiana Department of Correction will not

subject him to the inhumane conditions that he forced upon those twenty-five dogs.

                                    II. Double Jeopardy

       Johnson also claims that his conviction merits reversal because it violates the double

jeopardy clause of the Indiana Constitution.         Article I, Section 14 of the Indiana

Constitution provides: “No person shall be put in jeopardy twice for the same offense.”

Our supreme court has developed the following two-part test for reviewing double jeopardy

claims:

       [T]wo or more offenses are the “same offense” in violation of Article I,
       Section 14 of the Indiana Constitution, if, with respect to either the statutory
       elements of the challenged crimes or the actual evidence used to convict, the
       essential elements of one challenged offense also establish the essential
       elements of another challenged offense.




                                                14
Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008) (quoting Richardson v. State, 717 N.E.2d

32, 49 (Ind. 1999)). In this case, Johnson claims that his conviction cannot be sustained

under the actual evidence portion of the same offense test.

       According to Indiana’s double jeopardy jurisprudence, “the actual evidence

presented at trial is examined to determine whether each challenged offense was

established by separate and distinct facts.” Richardson, 717 N.E.2d at 53. The defendant

must establish “a reasonable probability that the evidentiary facts used by the fact-finder

to establish the essential elements of one offense may also have been used to establish the

essential elements of a second challenged offense.” Id. A reasonable possibility that the

fact-finder relied on the same facts for multiple offenses “requires substantially more than

a logical possibility” and “turns on a practical assessment of whether the jury may have

latched on to exactly the same facts for both convictions.” James v. State, 953 N.E.2d

1191, 1194 (Ind. Ct. App. 2011). On review, we consider the charging information, jury

instructions, and arguments of counsel to determine the facts relied upon by the jury for

each element of each offense. Id. If “the evidentiary facts establishing the essential

elements of one offense also establish only one or even several, but not all, of the essential

elements of a second offense[,]” there is no double jeopardy violation. Spivey v. State, 761

N.E.2d 831, 833 (Ind. 2002).

       The essential elements of the charged offense are that Johnson (1) knowingly or

intentionally (2) possessed the dogs (3) for the purpose of using each dog in an animal

fighting contest. I.C. § 35-46-3-8. It is undisputed that Johnson owned the fourteen pit

bulls forming the bases for these charges. Johnson asserts a double jeopardy violation

                                             15
because “the jurors may have very well considered the presence and condition of [the

thirteen other dogs] in finding that [he] did, in fact, intend to involve [one dog] in an animal

fighting contest.” (Appellant’s Br. p. 24). As a result, Johnson seeks reversal on thirteen

of the fourteen Counts. We disagree. The record is replete with evidentiary facts to

independently support each of the fourteen charges of possessing animals for fighting

purposes. Dr. Calvert, Dr. Smith, and Dr. Justice testified about the specific dog fight-type

injuries found on every single dog. Photographs of the individual animals also illustrated

the severity of each dog’s battle scars for the jurors to assess.

       Johnson further notes that the jury received an instruction about the statutory

definition of an “animal fighting contest.” (Appellant’s Br. p. 23). Because the jury was

specifically informed that such a conflict requires a minimum of two animals, Johnson

argues that the jury could “have considered the fact that there were in that one location the

multiple animals necessary to hold an animal fighting contest in arriving at the ultimate

conclusion.” (Appellant’s Br. p. 24). Again, we disagree. During the trial, Mills described,

in great detail, the customs of organized dog fights. As Mills explained, dog handlers do

not pit two of their own dogs against each other in a fight. Because of the wagers and

reputations at stake, each dog represents a potential value to its owner which is contingent

upon the outcome of a fight. A winning dog is credited with respect, whereas it is not

uncommon for a handler to execute his dog following a loss. Moreover, the logistics of

the actual fight resemble a boxing match in that each handler remains in his dog’s

respective corner; he picks the dog up between rounds, sponges the dog’s face, and

acknowledges to the referee when his dog shows weakness during the fight. Because there

                                              16
is evidence that each of the fourteen dogs was possessed for the purpose of fighting against

the dog of a different handler, we find Johnson’s contention that the jury relied on the same

facts to be unfounded.

                                      CONCLUSION

       Based on the foregoing, we conclude that there is sufficient evidence to uphold

Johnson’s conviction of fourteen Class D felonies for possession of animals for fighting

contests, and his conviction does not violate the double jeopardy clause of the Indiana

Constitution.

       Affirmed.

ROBB, J. and BRADFORD, J. concur




                                             17
