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FOR PUBLICATION

FILED
Jul 30 2008, 10:06 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JACK ROGERS Rogers & Gessi Franklin, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana

JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TERRY BAXTER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 03A04-0710-CR-596

APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT The Honorable Stephen R. Heimann, Judge Cause No. 03C01-0606-FD-1109

July 30, 2008 OPINION - FOR PUBLICATION BARNES, Judge

Case Summary Terry Baxter appeals his convictions on four counts of Class D felony failure to properly dispose of a dead animal and twelve counts of Class B misdemeanor neglect of an animal. We affirm in part and reverse in part. Issues The restated issues before us are: I. whether the statutes criminalizing improper disposal of a dead animal are constitutional; whether the trial court abused its discretion in allowing Bartholomew County Animal Control ("Animal Control") to participate in this case with respect to nine horses that had been seized from Baxter; whether the seizure of the horses violated Baxter's rights under the Indiana Constitution; and whether there is sufficient evidence to support all of Baxter's neglect convictions. 1

II.

III.

IV.

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Baxter also asserts trial court error in failing to permit discovery related to the seized horses and in denying his motion for the State to file a more detailed charging information. We find these arguments to not be supported by cogent reasoning and citation to relevant authority and, therefore, they are waived. See Ind. Appellate Rule 46(A)(8)(a); Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied.

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Facts 2 On May 25, 2006, Columbus Silgas employee Carl Hill went to 2060 North 500 West Road in Bartholomew County to pick up a propane gas tank. Baxter owned this property, on which an abandoned house was located where his mother used to live, as well as a dilapidated barn. In a muddy corral outside the barn, Hill and his co-worker saw four dead horses. The animals appeared to have been dead at least several days, judging by the flies and maggots covering them and how they lay in the mud. Hill told his supervisor what he had seen, and his supervisor contacted Animal Control. At about 9:30 a.m. on that same day, Animal Control Officer Paul East, accompanied by Bartholomew County Deputy Sheriff T.A. Smith, went to Baxter's residence located at 8211 Georgetown Road to discuss the dead horses. While walking to Baxter's front door, Officer East and Deputy Smith saw seven living horses that appeared to be emaciated and/or parasite infected in a corral next to the house. Baxter's son answered the officers' knock on the door, and told them that the dead horses were at his deceased grandmother's house on 500 West, which is about 3/8 of a mile down the road from Baxter's house.

We pause to note some deficiencies with the transcript and volume of exhibits that were filed with this court. First, there is no separately-bound table of contents for the transcript as required by Indiana Appellate Rule 28(A)(8). There is a table of contents that appears in the volume of exhibits. None of the volumes of transcript has a cover page as required by Appellate Rule 28(A)(7) and Appellate Form 28-1. Most problematic, however, is the state of the exhibits volume, which does not appear to be in any discernible order and which lacks an overall index of exhibits, as required by Appellate Rule 29(A). This has made it difficult to find highly relevant exhibits. It is unclear whether responsibility for the disorderly exhibit volume rests upon the court reporter or a party who used the volume after the reporter filed it. We urge greater care in ensuring that orderly records are presented.

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After Officer East and Deputy Smith saw the dead horses, Officer East decided it would be necessary to seize the still-living horses he had seen when approaching Baxter's residence. He called Shirley Smith, president of the Indiana Hooved Animal Humane Society ("the Society"), to remove the horses and place them in foster care. Workers for the Society arrived at Baxter's residence at about 1:00 p.m. to remove the horses. Acting without a warrant, the Society seized a total of nine horses from Baxter, although apparently there were several other horses on the property that they did not seize. Shirley observed that the horses were extremely thin and lice-infested. Also, one of the seized horses had had its tail eaten off; horses sometimes eat the tails of other horses when they are malnourished. A veterinarian examined the horses on May 26, 2006. One of the seized horses, a young foal, appeared to be in "pretty good physical condition." Tr. p. 352. However, the remainder of the horses as a group "appeared to have very poor body conditions." Id. at 347. On a body scale assessment that ranged from one to nine, with one being extremely thin and nine extremely overweight, the veterinarian graded the eight horses, aside from the foal, from one to four. The

veterinarian considered all of the horses to be malnourished and not taken care of properly. He also believed the four dead horses had each been dead for at least a couple of days, based on the state of their decomposition. Because of the decomposition, however, the veterinarian was not able to assess the horses' body condition before death. Another veterinarian examined the same horses in August 2006 and agreed with the first veterinarian's assessment of the horses' condition when they were first seized, based on

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the records, but also found that they were progressing well and had improved body conditions since being removed from Baxter's care. On June 6, 2006, the State charged Baxter with four counts of Class D felony failure to properly dispose of a dead animal, plus thirteen counts of Class B misdemeanor neglect of an animal--four counts for the dead horses and nine counts for the seized live horses. On July 10, 2006, Baxter moved for permission to sell the nine seized horses. On October 12, 2006, Animal Control moved to intervene in the case for the express purpose of objecting to Baxter's motion to sell the horses. On November 3, 2006, the trial court allowed Animal Control to intervene, and it also denied Baxter's motion to sell the horses. On November 17, 2006, Baxter moved for the trial court to declare unconstitutional the statutes making failure to properly dispose of a dead animal a Class D felony. On December 14, 2006, Baxter filed a motion to suppress all evidence related to the warrantless viewing of the live and dead horses and seizing of the live horses on May 25, 2006. The trial court denied both motions. After a jury trial held on August 7 to 9, 2007, Baxter was acquitted of the animal neglect charge related to the foal but was convicted of the other twelve animal neglect counts, plus the four counts of failure to properly dispose of a dead animal. Baxter now appeals.

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Analysis I. Constitutionality of Animal Disposal Statutes Baxter contends that the statutes criminalizing failure to properly dispose of a dead animal are unconstitutionally vague. In 2006, Indiana Code Section 15-2.1-16-20 3 stated: (a) A person owning or caring for any animal that has died from any cause may not allow the body to lie about. Any animal body shall be disposed of by the person within twentyfour (24) hours after knowledge of death so as not to produce a nuisance. Disposal must be by one (1) of the following methods: (1) At an approved disposal plant.

(2) Burial upon the owner's premises to such a depth that every part of the animal's body is at least four (4) feet below the natural surface of the ground and every part of the animal's body is covered with at least four (4) feet of earth in addition to any other material that may be used as cover. (3) Thorough and complete incineration according to standards established by an appropriate governmental agency. (4) Composting according to standards approved by the board. (b) The [State] board [of animal health] may adopt rules that allow for alternate methods of disposing of dead animals that will promote the safe, orderly, and efficient disposal of dead animals. The board may adopt rules and issue orders restricting the use of the disposal methods described in subsection (a) to control disease. Indiana Code Section 15-2.1-21-9 4 further provided:

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In 2008, this statute was recodified at Indiana Code Section 15-17-11-20. See P.L. 2-2008

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