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).
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[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.
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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
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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
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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.
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[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
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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.
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[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.
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[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.
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