Constance Anderson v. State of Indiana

Jun 21 2013, 5:53 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS GREGORY F. ZOELLER

Fort Wayne, Indiana Attorney General of Indiana

CHANDRA K. HEIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CONSTANCE ANDERSON, )

)

Appellant-Defendant, )

)

vs. ) No. 02A03-1211-CR-495

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Wendy W. Davis, Judge

Cause No. 02D06-1206-FD-802

June 21, 2013

OPINION - FOR PUBLICATION

MAY, Judge

Constance Anderson appeals following her convictions of two counts of Class D

felony criminal mischief1 and five counts of Class A misdemeanor animal cruelty.2 She

presents two issues for review:

1. Whether her three-year sentence was an abuse of discretion; and

2. Whether Anderson’s sentence is inappropriate in light of her character and

offenses.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 1, 2012, a neighborhood resident contacted the City of Fort Wayne’s

Animal Care and Control Department (“FWACC”) to report abandoned cats living inside a

residence at 908 Elmer Street. FWACC dispatched Officer J. Schmeling to investigate. He

smelled cat urine from fifteen feet away from the house. He saw multiple cats and a large

amount of feces in the house, and contacted the Fort Wayne Police Department.

Anderson indicated to officers she rented the property and admitted responsibility for

the cats.3 She allowed officers into the property and surrendered custody of the cats to the

FWACC. When police and Animal Care officers entered the residence, they could walk only

a few feet into the home before the overwhelming smell of cat urine forced them to leave.

The Fort Wayne Fire Department was contacted to test the air quality in the home

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Ind. Code § 35-43-1-2.

2

Ind. Code § 35-46-3-7.

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Anderson rented the Elmer Street property wherein she maintains upwards of eighty-five cats, but does not

reside there due to the property’s dilapidated state. Anderson also rented the St. Mary’s Avenue property

wherein she and Tourney reside.

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because of the high levels of ammonia from the cat urine. Normal air quality contains thirty-

five parts per million of ammonia; the test here revealed levels in excess of four times that

amount. The property had to be ventilated for two weeks before officers could enter to

recover the cats. They removed and then had to euthanize between sixty-six and eighty-five

cats.

The only water Anderson provided for the cats was from a faucet that dripped into a

sink contaminated with dirt or feces. Anderson claims she dumped a bag of cat food on the

floor inside the house every few days to be divided among upwards of eighty-five cats. That

amount was inadequate, as evidenced by the cats cannibalizing their young. Anderson knew

the cats were desperate for food, because cat skulls were visible on the floor and Anderson

wrapped kitten remains and stored them in the refrigerator and freezer. Every surface in the

house was covered with cat feces and urine. Urine had soaked into the walls of the first floor

and seeped into the floorboards that divided the first floor and basement. The property had

been valued at $45,000 before Anderson rented it. Following the removal of the cats, the

property was condemned and slated for demolition.

On March 13, Lynn Scrogham, who owned the property where Anderson lived on St.

Mary’s Avenue, contacted FWACC because of a strong smell of cat urine outside that

residence. FWACC conducted a consensual search of that residence and recovered twenty-

three live cats and twenty-one deceased cats and kittens. The St. Mary’s property required

$13,000 in renovations due to damage caused by the cats. In total, 108 live cats were

discovered at the two properties. All but five of them had to be euthanized. Thirty-seven

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dead cats were discovered in freezers.

The State charged Anderson with two counts of Class D felony criminal mischief and

five counts of Class A misdemeanor animal cruelty. Anderson pled guilty without the benefit

of a plea agreement. After a sentencing hearing, the court pronounced five concurrent one-

year sentences for animal cruelty, to be served concurrent with three-year sentences for

criminal mischief, with eighteen months executed, eighteen months suspended, and eighteen

months on probation.

DISCUSSION AND DECISSION

1. Abuse of Discretion

Anderson argues the trial court abused its discretion when it sentenced her because it

did not consider all mitigating factors. Sentencing decisions rest within the sound discretion

of the trial court and will be disturbed only on a showing of abuse of discretion. Anglemyer

v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g 875 N.E.2d

218 (Ind. 2007). An abuse of discretion occurs when the decision is clearly against the logic

and effect of the evidence before the court or the reasonable inferences to be drawn

therefrom. Id. at 482. In the context of an assertion the trial court failed to find a mitigating

factor, an appellant has the burden of showing the alleged factor was offered to the trial court

and is both significant and clearly supported by the record. Id. at 493. A trial court’s

consideration of factors may be evidenced in either the written order or in an oral sentencing

statement. Gleason v. State, 965 N.E.2d 702, 711 (Ind. Ct. App. 2012).

Anderson contends the court should have considered her education and employment

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history, lack of criminal history, cooperation with the investigation, her remorse, and her

mental state as mitigators.4 The record reflects the court considered each factor, but found

none significant.

The trial court found Anderson’s education and employment history were not

mitigating factors, but instead should have enabled her to appreciate the wrongfulness of her

acts. It noted evidence of her good character in the form of reference letters, but determined

it was not a significant mitigating factor. The court found a mitigator in Anderson’s lack of

criminal history. It considered Anderson’s cooperation and remorse, but found her remorse

attributable to being apprehended, rather than regret for her conduct; Anderson was still

attempting to deflect blame from herself to a roommate, rather than fully accepting

responsibility for her actions.

2. Nature of the Offense and the Character of the Offender

Ind. Appellate Rule 7(B) empowers us to independently review and revise sentences

authorized by statue if, after due consideration, we find the trial court’s decision

inappropriate in light of the nature of the offense and the character of the offender. Reid v.

State, 876 N.E.2d 1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s

actions with the required showing to sustain a conviction under the charged offense,

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the “character of the offender”

permits for a broader consideration of the defendant’s character. Douglas v. State, 878

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Anderson claims the court should have found a mitigator in her mental illness, but she did not assert this

mitigator at the sentencing hearing. See Koch v. State, 952 N.E.2d 359, 374-75 (Ind. Ct. App. 2011) (waiving

mitigator that had not been raised at sentencing).

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N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears the burden of showing both prongs

of the inquiry favor revision of her sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006).

Anderson argues on appeal only the “character” prong and not the “nature of offense”

prong. She has therefore waived any “nature of the offense” argument. See Day v. State,

898 N.E.2d 471, 472 (Ind. Ct. App. 2008). Waiver notwithstanding, Anderson’s argument

fails.

In reviewing the first prong of the inquiry, Anderson’s conduct clearly exceeds the

elements necessary under the charged offenses. Anderson was convicted of criminal

mischief, which required the State to prove she recklessly, knowingly, or intentionally

damaged the property of LAEK, LLC and Lynn Scrogham, without consent and caused

pecuniary loss of at least $2,500.00. See Ind. Code § 35-43-1-2. Anderson was aware of the

state of the property, as she went there to feed the cats. Neither landlord consented to

Anderson’s method of housing and maintaining the cats. Anderson caused $45,000 damage

to the property of LAEK, LLC, and $13,358.11 in damage to the property of Lynn Scrogham.

Anderson’s convictions of animal cruelty required the State to prove that Anderson

recklessly, knowingly, or intentionally abandoned or neglected an animal by restraining it in a

manner that seriously endangered the animal’s life or health. See Ind. Code § 35-46-3-7.

Anderson and her roommate resided at the Elmer Street property in 2006, but left the

property around 2010 due to its dilapidated state. They left upwards of eighty-five cats in

that dwelling with inadequate nourishment. The air quality test showed ammonia levels four

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times higher than normally expected for a living space. Anderson kept upwards of thirty-

seven dead cats in her refrigerators and freezers. As a consequence of Anderson’s actions

another 103 cats had to be euthanized. Anderson’s conduct far exceeded the necessary

showing under these counts, and permitted an enhanced sentence.

As to Anderson’s character, she knew the state of affairs in the two properties and

ignored the problem. Despite her education and occupation in the mental health profession,

Anderson exhibited a lack of concern for the well-being of the cats. Nor did she exhibit

concern for the welfare of her neighbors when she permitted the Elmer Street property to

become an environmental hazard.

We cannot find Anderson’s sentence inappropriate based on her offense or character.

CONCLUSION

Anderson has not demonstrated the trial court abused its discretion in its consideration

of mitigating factors. Additionally, we decline to exercise our authority to revise a sentence

under App. R. 7(B) as Anderson’s sentence cannot be said to be inappropriate in light of her

character and the nature of her offense.

Affirmed.

BAKER, J., and MATHIAS, J., concur.

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