MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jun 21 2019, 7:21 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew R. Falk                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Victoria M. Tidwell,                                     June 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1185
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Rhett M. Stuard,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         32D02-1706-CM-752



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019                      Page 1 of 10
[1]   Victoria Tidwell appeals her convictions for Class A Misdemeanor Dog Bite

      Resulting in Serious Bodily Injury,1 Class B Misdemeanor Harboring a Non-

      Immunized Dog,2 and Class C Misdemeanor Dog Bite Resulting in Bodily

      Injury,3 arguing that (1) the evidence was insufficient to support the dog bite

      convictions; and that (2) the dog bite convictions and the harboring a non-

      immunized dog convictions violate Indiana’s prohibition against double

      jeopardy. Finding that the evidence was sufficient but that there was a double

      jeopardy violation, we affirm in part and reverse and remand in part with

      instructions.


                                                    Facts
[2]   Tidwell and her fiancé, James Hall, were living in Hendricks County with

      Tidwell’s three dogs, Slush, Bear, and Oreo. Tidwell’s landlord told her that the

      dogs had to remain outside, so Tidwell put the three dogs on a chain. However,

      in the winter of 2016, Tidwell installed a chain-link fence and placed stakes and

      boards around the fence’s perimeter until she could afford to sink the fence

      posts in concrete. Tidwell hoped that this make-shift footing would prevent her

      three dogs from escaping. With the chain-link fence in place, Tidwell let her

      dogs roam free around her yard.




      1
          Ind. Code §§ 15-20-1-4(a), -4(b)(2)(B).
      2
          Ind. Code § 35-46-3-1.
      3
          I.C. § 15-20-1-4(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019   Page 2 of 10
[3]   On May 18, 2017, with the concrete stakes not yet installed, Tidwell’s three

      dogs escaped from her yard, despite Tidwell’s claims that she had locked and

      secured the fence before she left for work that day. Marcia Wells, who was

      standing on her own sidewalk, noticed the three dogs approach her. The dogs

      started barking at Wells and eventually bit her on her left leg. Wells attempted

      to walk away, but the dogs bit her again. On the same day, another neighbor,

      Jack Singleton, was bitten by the dogs on his ear, knee, leg, and arm in his own

      yard. Like Wells, Singleton tried to evade the dogs by walking away, but he was

      bitten again. Singleton fell down and started crawling away in an attempt to

      escape.


[4]   Hendricks County Sheriff’s Department Deputy Justin Arnes, who was off-duty

      at the time, was running with his dog when he noticed Tidwell’s dogs attacking

      Singleton. Deputy Arnes returned home to put his own dog in the garage before

      returning to assist Singleton, who was now bloodied. While Deputy Arnes was

      administering first aid, Tidwell’s three dogs returned and started attacking and

      biting him.


[5]   Hendricks County Animal Control (HCAC) Officer Kelly Manns responded to

      a report of multiple dog bite wounds. First, Officer Manns spoke with Wells,

      who confirmed that three dogs were loose and that she had been bitten. Officer

      Manns then called for an officer to help capture the dogs. HCAC Officer

      Brandon Keisker responded to the call and assisted Officer Manns, Deputy

      Arnes, and others with the task. Officer Keisker was able to capture one dog

      and put it back behind Tidwell’s chain-link fence, but it immediately escaped.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019   Page 3 of 10
      Officer Keisker testified that the fence as he observed it “was not in good proper

      working order[,]” and “was really flimsy” with “no attachment to the ground.”

      Tr. Vol. II p. 32. Tidwell and Hall returned home, identified themselves as the

      dogs’ owners, and helped the group rein in the dogs. After roughly two to three

      hours, all three dogs were caught and placed in HCAC custody. Officer Manns

      called a veterinarian, who reported that all three dogs had either not been

      vaccinated, or if they had been vaccinated, that their vaccinations had expired.


[6]   Deputy Arnes, Wells, and Singleton all went to the hospital to treat their

      wounds. Medical personnel had to sew Singleton’s ear lobe back on, and

      Singleton testified more than a year later that the pain had not gone away.

      Deputy Arnes had to receive stitches for the bite wounds on his leg, and

      medical staff discovered that the dog bites pierced Wells’s skin.


[7]   On June 2, 2017, the State charged Tidwell with three counts of Class C

      misdemeanor dog bite resulting in bodily injury. On March 26, 2018, the State

      enhanced one of the Class C misdemeanor counts to Class A misdemeanor dog

      bite resulting in serious bodily injury. That same day, the State also charged

      Tidwell with three counts of Class B misdemeanor harboring a non-immunized

      dog. At Tidwell’s April 6, 2018, bench trial, Tidwell admitted that she harbored

      non-immunized dogs. The trial court found Tidwell guilty as charged.


[8]   The trial court then sentenced Tidwell to ninety days fully suspended and

      ordered her to serve 365 days of probation. On April 30, 2018, the trial court

      held a hearing to determine restitution for the victims’ medical bills. During the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019   Page 4 of 10
       restitution hearing, Tidwell filed, and the trial court granted, a motion to stay

       any restitution order because she planned to appeal the trial court’s jurisdiction

       to enter a restitution order given that it had already entered the sentencing

       order.


[9]    On November 26, 2018, this Court issued a memorandum decision finding that

       the trial court did, in fact, have jurisdiction to enter the restitution order and

       remanding for further proceedings. Tidwell v. State, Cause No. 18A-CR-00185,

       slip op. at 2 (Ind. Ct. App. Nov. 26, 2018). Following the rescheduled January

       9, 2019, restitution hearing, the trial court ordered that Tidwell pay $940.50 in

       restitution to the victims. Tidwell now appeals.


                               Discussion and Decision

                              I. Sufficiency of Evidence
[10]   First, Tidwell argues that the evidence was insufficient to support her

       convictions for Class A and Class C misdemeanor dog bite causing bodily

       injury.


[11]   When reviewing the sufficiency of the evidence supporting a conviction, we

       must affirm if the probative evidence and reasonable inferences drawn

       therefrom could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). It is not our job to reweigh the evidence or to judge the credibility of the



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019   Page 5 of 10
       witnesses, and we consider any conflicting evidence most favorably to the trial

       court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).


[12]   To convict Tidwell of Class A misdemeanor dog bite resulting in serious bodily

       injury, the State was required to prove beyond a reasonable doubt that the

       owner recklessly, knowingly, or intentionally failed to take reasonable steps to

       restrain a dog; the dog entered property other than the property of the dog’s

       owner; and as a result of the owner’s failure to restrain the dog, the dog bit or

       attacked another person without provocation, resulting in serious bodily injury.

       I.C. §§ 15-20-1-4(a), -4(b)(2)(B). For Class C misdemeanor dog bite causing

       bodily injury, the State must prove the same elements beyond a reasonable

       doubt, except that it need only show that the failure to restrain resulted in

       regular—as opposed to serious—bodily injury. I.C. § 15-20-1-4(a).


[13]   It is undisputed that Tidwell’s dogs entered property other than the property of

       the dogs’ owner, and as a result of the lack of restraint, the dogs bit and

       attacked people without provocation, resulting in serious bodily injury to

       Singleton—the Class A misdemeanor charge—and regular bodily injury to

       Wells and Deputy Arnes—the Class C misdemeanor charges. Tidwell only

       contends that the State failed to prove beyond a reasonable doubt that she

       recklessly or knowingly failed to take reasonable steps to restrain the dogs.4




       4
           Both Tidwell and the State concede that Tidwell did not intentionally fail to restrain the dogs.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019                          Page 6 of 10
[14]   “A person engages in conduct ‘knowingly’ if, when [she] engages in the

       conduct, [she] is aware of a high probability that [she] is doing so.” Ind. Code §

       35-41-2-2(b). “A person engages in conduct ‘recklessly’ if [she] engages 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.” I.C. § 35-41-2-2(c). While there is little evidence to prove

       that Tidwell acted recklessly, the evidence was sufficient that a reasonable trier

       of fact could conclude that Tidwell knowingly failed to restrain her dogs.


[15]   Pursuant to her landlord’s demands, Tidwell kept her three dogs outside in her

       backyard. After keeping the dogs on a chain for some time, Tidwell decided to

       build a fence so her dogs could roam free. However, Tidwell did not have the

       money to root the chain-link fence in concrete. So, she placed make-shift stakes

       and footing around the base perimeter of the fence to prevent her dogs from

       escaping. This attempt at fencing and security did not work, and the evidence

       suggests that Tidwell knew it would not work.


[16]   While attempting to capture the dogs during their biting spree, Officer Keisker

       testified that the fence as he observed it “was not in good proper working

       order[,]” and “was really flimsy” with “no attachment to the ground.” Tr. Vol.

       II p. 32. Indeed, one of the dogs that Officer Keisker captured was able to

       escape immediately after he put it behind the fence. See Boss v. State, 964 N.E.2d

       931, 936 (Ind. Ct. App. 2012) (holding that “obvious gaps through which []

       dogs could escape” in a fenced-in area indicates a knowing failure to restrain).

       Furthermore, Tidwell admitted that the fence was not complete because she

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019   Page 7 of 10
       could not afford to pay for the concrete that traditionally accompanies most

       chain-link fences. This evidence in the aggregate could lead a reasonable trier of

       fact to conclude that Tidwell was aware and had knowledge of the fact that the

       fence was not enough to control her three dogs. The trial court agreed and held,

       as follows:


                Uh, the definition of knowingly basically is that there’s a high
                probability based on your conduct that, uh, that event will occur. I
                think the fact that she put boards and stakes around her fence
                actually indicates that she did have some knowledge that there’s a
                high probability those dogs could get out and so, I think that
                element has been met.


       Tr. Vol. II p. 79. In sum, the evidence is sufficient.5


                                      II. Double Jeopardy
[17]   Second, Tidwell argues that her separate convictions for dog bite causing bodily

       injury and harboring a non-immunized dog violate Indiana’s prohibition

       against double jeopardy. We review questions of double jeopardy de novo,

       giving no consideration to the trial court’s decision below. Goldsberry v. State,

       821 N.E.2d 447, 458 (Ind. Ct. App. 2005).




       5
         Tidwell incorrectly argues that “the fact that there was no testimony that the dogs had ever escaped before,
       that they had ever been off the property, or that they had ever bitten anyone,” appellant’s br. p. 15, negates
       any claim that she knowingly or recklessly failed to restrain her dogs. The plain language of the statute does
       not require any proof of a previous dog bite, flight, or escape in order to convict.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019                      Page 8 of 10
[18]   The principle of double jeopardy prohibits the State from punishing a defendant

       twice for the same offense. Mehidal v. State, 623 N.E.2d 428, 434 (Ind. Ct. App.

       1993); see generally Ind. Const. art. I, § 14. Moreover, a defendant cannot be

       subjected to a conviction or a sentence enhancement for the same behavior or

       act that was punished for another conviction. Guyton v. State, 771 N.E.2d 1141,

       1142 (Ind. 2002). Tidwell contends that the trial court relied on the same facts

       to convict her of dog bite causing bodily injury and harboring a non-immunized

       dog since both convictions require evidence that the offender’s actions resulted

       in bodily injury to another person, an essential element. Spivey v. State, 761

       N.E.2d 831, 833 (Ind. 2002). The State concedes this issue, and we agree. See

       Boss, 964 N.E.2d at 937 (holding that defendant’s convictions for dog bite

       resulting in serious bodily injury and harboring a non-immunized dog violated

       the prohibition against double jeopardy because there was a reasonable

       possibility that the separate convictions relied on the same evidentiary facts).


[19]   “When two convictions are found to contravene double jeopardy principles, a

       reviewing court may remedy the violation by reducing either conviction to a

       less serious form of the same offense if doing so will eliminate the violation.”

       Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999). Accordingly, we remand this

       case to the trial court with instructions to reduce Tidwell’s three Class B

       misdemeanor convictions to Class C misdemeanors since the Class C

       misdemeanor statute does not have a bodily injury element.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019   Page 9 of 10
[20]   The judgment of the trial court is affirmed in part and reversed and remanded in

       part with instructions.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | June 21, 2019   Page 10 of 10
