Fuller v. State

SULLIVAN, Judge,

concurring in part and dissenting in part.

I fully concur with respect to Issues I, II, and III. I must respectfully dissent, however, as to Issue IV.

Count I charges that Fuller promoted or staged an animal fighting contest by using “pitbull dogs”. Record at 14. Count II charged that he “use[d] an animal in a fighting contest.” Record at 14. It is undeniable that the animal covered by Count II was one of the two dogs alleged to have been involved in Count I. There was but one fighting contest involved on the occasion in question and that contest involved two pit-bull dogs. Count II was an included offense within Count I, as charged.

In this respect it should be noted that I.C. 35-46-3-9 defines a single Class D felony, divided into three subsections. The subsections are phrased in terms of different aspects of conduct relating to participation in or attendance at a fighting contest involving animals.

It would be disingenuous to suggest that Count II could stand without reference to one of the animals referred to in Count I. Therefore one of the two dogs, i.e., animals, in Count I was necessarily the animal alluded to in Count II. Furthermore, it would seem self-evident that a person could not be con*580victed both of using an animal in a fighting contest under I.C. 35-46-3-9(b) and attending the same fighting contest under (c) of the statute.

If Fuller promoted or staged a fighting contest as alleged in Count I, he did so using pit-bulls, also as alleged. This is the conduct which constitutes the basis of Count II. I would hold that the two convictions here cannot stand. Burton v. State (1996) Ind.App., 665 N.E.2d 924; Ely v. State (1995) Ind.App., 655 N.E.2d 372; Boushehry v. State (1995) Ind.App., 648 N.E.2d 1174.

I would remand with instructions to vacate one of the two convictions.