Lisa Orwig v. State of Indiana (mem. dec.)

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.

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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

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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

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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

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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

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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

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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

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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.

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