      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                         Dec 30 2016, 6:26 am

      court except for the purpose of establishing                          CLERK
                                                                        Indiana Supreme Court
      the defense of res judicata, collateral                              Court of Appeals
                                                                             and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      A. David Hutson                                         Gregory F. Zoeller
      Hutson Legal                                            Attorney General of Indiana
      Jeffersonville, Indiana
                                                              Larry D. Allen
                                                              Jesse R. Drum
                                                              Deputy Attorneys General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA
      Lisa Orwig,                                             December 30, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              31A01-1604-CR-825
              v.                                              Appeal from the Harrison Superior
                                                              Court
      State of Indiana,                                       The Honorable Joseph L.
      Appellee-Plaintiff.                                     Claypool, Judge
                                                              Trial Court Cause No.
                                                              31D01-1510-CM-634



      Mathias, Judge.


[1]   Following a jury trial in Harrison Superior Court, Lisa Orwig (“Orwig”) was

      convicted of permitting her livestock to run at large, a Class B misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016   Page 1 of 9
      On appeal, Orwig claims that the State failed to present sufficient evidence to

      establish that she knowingly permitted her horse to run at large.


[2]   We affirm.


                                    Facts and Procedural History

[3]   Orwig is the owner of several horses, one of whom is a large, white draft horse

      named Al. For most of his life, Al was a stallion, but was later partially

      castrated to become a “proud cut” gelding, a surgical procedure to reduce or

      eliminate stallion-like behavior. Al is a somewhat aggressive horse who is

      difficult to handle. On numerous occasions over the years, Al has escaped from

      Orwig’s property and wandered the surrounding area. Orwig admitted that Al

      had escaped more than twenty times from her property. While escaped, Al has

      damaged Orwig’s neighbors’ property and wandered into the road, creating a

      hazard for motorists. Orwig’s neighbors had complained for years, asking her to

      keep Al under control, to no avail.


[4]   Orwig kept Al on her property, which includes at least one barn and a fence.

      However, the fence was in a poor state of repair and had several sections that

      Al could and clearly did ignore. The most secure place for Orwig to keep Al

      was in her barn, but Al did not like going into the barn. Therefore, Orwig often

      kept Al tied to a stationary object, such as a tree, a post, or even a trampoline.

      None of this kept Al on Orwig’s property, and Al escaped at least ten times

      between March and October 2015. On one occasion, Al dragged the trampoline




      Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016   Page 2 of 9
      to which he was tied into the middle of the adjacent road. He had also gotten

      himself tied up in the lead rope used to unsuccessfully restrain him.


[5]   On one of the previous occasions where Al had escaped, which occurred on

      March 11, 2015, Harrison County Animal Control Officer Bruce Lahue

      (“Officer Lahue”) responded to the scene. Officer Lahue had already responded

      to at least six other calls regarding Al escaping, so he delivered a notice to

      Orwig explaining the possible legal ramifications of her continuing failure to

      keep Al properly enclosed on her property. This notice provided:


              As you are aware, over the past twelve (12) months our agency
              has responded to six (6) complaints concerning your horses being
              at large. The following correspondence is to make sure you
              understand our concerns and the action we plan to take to assure
              compliance with the Harrison County Animal Control
              Ordinance and Indiana Criminal Code 15-17-18-8 Animals
              Running At Large. The first issue to be addressed is the
              confinement of your white stallion. The horse has proven to be
              extremely defiant and difficult to restrain and as such causes us
              great concern for public safety. The second issue to be addressed
              also involves the restraint of the stallion. The practice of tethering
              the horse is not acceptable. On more th[a]n one occasion the
              horse has been found entangled and denied access to food and
              water. On 03/05/2015 the horse was found with the tether
              wound around its front leg in a manner restricting movement and
              circulation. The third issue is the condition of the fence. The
              fence is neither of adequate height or strength to contain livestock
              in accordance with Indiana law IC 32-26-9. We want to make
              sure you understand that we can no longer tolerate the violations
              and in the interest of public safety must enforce the laws of
              Harrison County and the State of Indiana. Please be advised that
              effective immediately any horse found at large will be considered
              a criminal violation and all subsequent investigations will be

      Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016   Page 3 of 9
              coordinated with local law enforcement for the purpose of
              pursuing criminal charges and prosecution. You should also note
              that restraining the stallion with a lead when it’s not under the
              immediate supervision of an adult human will be considered
              cruel and as such a violation of the Harrison County Animal
              Control Ordinance making you subject to a notice of violation
              and a $50-$250 fine. I hope we have made our position on this
              matter clear. We are in no way limiting your access to due
              process. The intent of this correspondence is to make you aware
              of the seriousness of this matter. Your immediate attention and
              compliance is required.


      Ex. Vol., State’s Ex. 5. Officer Lahue gave this notice to Orwig, who signed it,

      acknowledging her receipt thereof. Id.


[6]   This case stems from Al’s escape from Orwig’s property seven months later, on

      the morning of October 7, 2015. Orwig left for work the prior evening and tied

      Al up to a four-by-four post next to her garage. Early the next morning, one of

      Orwig’s neighbors, Connie Mullins (“Mullins”), noticed Al once again on her

      property. Mullins had previously spoken to Orwig, law enforcement, and

      animal control about Al’s continued incursions onto her property. This time,

      however, she contacted the Harrison County Prosecutor’s Office. The

      Prosecutor’s Office then informed the Sheriff’s office, who sent Deputy Mike

      Kurtz (“Deputy Kurtz”) to investigate. Officer Lahue was also dispatched to

      the area.


[7]   Officer Lahue arrived on the scene first and found Al on property belonging to

      another one of Orwig’s neighbors, Larry Laduke (“LaDuke”). Al was still

      connected to the twenty-foot lead rope, which had become inextricably

      Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016   Page 4 of 9
       ensnared with a child’s bicycle, which itself was entangled in some weeds.

       Officer Lahue had to cut the lead rope to free it from the bicycle so he could

       secure Al for impoundment. When Deputy Kurtz arrived on the scene, he

       spoke with LaDuke and Mullins and took photographs of the area. He observed

       and photographed the fence surrounding Orwig’s horse pasture, which was

       broken and had a “gaping hole” in it. Tr. p. 106.


[8]    Orwig’s daughter, who lived with her, noticed Officer Lahue’s truck and

       observed him with Al. She exchanged words with the officer and telephoned

       her mother to inform her that Al was being impounded. Orwig returned home

       and spoke to the law enforcement and animal control officers. She admitted

       that her fencing was inadequate and stated that only an electric fence would

       keep Al contained, but she did not own an electric fence. She also

       acknowledged the prior notice she had received from animal control.


[9]    The next day, the State charged Orwig with permitting her livestock to run at

       large, a Class B misdemeanor. A jury trial was held on March 3, 2016, at the

       conclusion of which the jury found Orwig guilty as charged. The trial court

       sentenced Orwig to 180 days, with twenty days executed and 160 days

       suspended. The court also imposed a $1,000 fine. Orwig now appeals.


                                            Standard of Review

[10]   Orwig challenges the sufficiency of the evidence to support her conviction. Our

       standard of review in claims of insufficient evidence is well settled: we neither

       reweigh the evidence nor judge the credibility of the witnesses, and we consider


       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016   Page 5 of 9
       only the evidence most favorable to the verdict and the reasonable inferences

       that can be drawn from this evidence. Knight v. State, 42 N.E.3d 990, 993 (Ind.

       Ct. App. 2015). We will not disturb the jury’s verdict if substantial evidence of

       probative value supports it. Id. As an appellate court, we respect the jury’s

       exclusive province to weigh conflicting evidence. Id.


[11]   Orwig was convicted under Indiana Code section 15-17-18-8(a), which

       provides, “Except as provided in subsection (b), [1] a person responsible for

       livestock or poultry who knowingly or intentionally permits the livestock or

       poultry to run at large commits a Class B misdemeanor.” The term “livestock”

       means any domestic animals except: (1) aquatic animals, (2) fish, (3) dogs, (4)

       cats, and (5) poultry and other birds, excluding ratites.2


[12]   It is undisputed that Al, a horse, fits the statutory definition of “livestock.” Nor

       does Orwig claim that there was insufficient evidence to show that Al had

       escaped from her property and was running at large.3 Orwig claims only that

       there was insufficient evidence to establish that she knowingly permitted Al to

       run at large.




       1
         Subsection (b), which is inapplicable here, provides, “Subsection (a) does not apply to a person who keeps
       livestock on property by means of a cattle guard or another device under IC 8-17-1-2.1.”
       2
        A ratite is one of several species of large, flightless birds, i.e., ostrich, rhea, emu, cassowary, and kiwi. See
       “Ratite” http://www.oed.com/view/Entry/158522.
       3
        The term “at large” is defined as “[a]t liberty, free; without restraint or check.” http://www.oed.com/
       view/Entry/105843.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016                 Page 6 of 9
[13]   “A person engages in conduct ‘knowingly’ if, when he engages in the conduct,

       he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).

       Orwig admits that Al had escaped from her property several times in the past

       but claims that, mathematically, there was only a small chance that Al would

       escape any given day. Therefore, she claims that it is impossible for her to have

       acted “knowingly,” i.e., that she was aware of a high probability Al would run

       at large. We are unpersuaded by Orwig’s mathematical calculations.

[14]   The issue before the jury was not whether, on any given day, the odds were

       high that Al might escape and run at large. Instead, the issue before the jury

       was whether, on the day in question, Orwig was aware of a high probability

       that she permitted Al to run at large, i.e. without restraint or check. Orwig knew

       that Al had escaped numerous times in the past. She admitted that her fence

       was inadequate to keep Al on her property. She even admitted that the only

       thing that could keep Al on her property was an electric fence, which she did

       not have. She also stated that the one way she knew to keep Al contained was

       to put him in the barn, although he did not like to be put in the barn. Despite

       her knowledge of all of these facts, on the night in question, Orwig tied Al up to

       a four-by-four post with a rope, from which he easily broke free, as he had

       numerous times in the past. From this, the jury could reasonably infer that

       Orwig knowingly permitted Al to run at large when she tied him to a post,

       which she knew was insufficient to restrain him.


[15]   Orwig notes that she testified that she told her daughter to keep an eye on Al

       while she was at work. She therefore claims that this case is akin to that in

       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016   Page 7 of 9
       Villagrana v. State, 954 N.E.2d 466 (Ind. Ct. App. 2011). In Villagrana, this court

       held that the evidence was insufficient to prove that the defendant knowingly

       placed his daughter in a situation that endangered her life or health when he left

       her unattended for twenty minutes under the mistaken assumption that she was

       being watched by her aunt. Id. at 469. We find Villagrana to be readily

       distinguishable.


[16]   First and foremost, the jury was under no obligation to credit Orwig’s testimony

       that she asked her daughter to watch Al. Indeed, Orwig’s daughter did not

       corroborate her mother’s testimony. She testified that she generally “took care

       of [Al] when my mom cannot.” Tr. p. 126. She made no mention of an

       instruction by her mother to watch Al on the day in question. Furthermore,

       Orwig left Al unattended throughout the night and early morning, as Orwig’s

       daughter testified that she herself left for school at 7:00 a.m. and did not return

       until 9:00 a.m., at which time Al had already broken free. We decline to hold

       that Orwig’s deliberate actions of leaving a horse who had repeatedly broken

       free from lead ropes tied to a post all night and into the morning, are equivalent

       to inadvertently leaving a child unattended for twenty minutes.

[17]   We similarly find Orwig’s citation to Scruggs v. State, 883 N.E.2d 189 (Ind. Ct.

       App. 2008), unavailing. In that case, this court held that the evidence was

       insufficient to establish that the defendant knowingly neglected her seven-year-

       old daughter by leaving her alone at home for three hours, where there was

       uncontradicted evidence that the defendant thought her child responsible

       enough to be left alone for a short time. Id. at 191. Here, by contrast, it was well

       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016   Page 8 of 9
       established that leaving Al tied only with a lead rope was an insufficient method

       to restrain him, yet Orwig left Al tied unattended to a post overnight and

       through the early morning.


[18]   In short, we hold that the evidence presented by the State was sufficient to

       support Orwig’s conviction.


[19]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-825 | December 30, 2016   Page 9 of 9
