ILNews

Judges affirm part of sentence, reverse enhancements on double jeopardy grounds

Back to TopCommentsE-mailPrintBookmark and Share

A woman whose dogs attacked and injured two people failed to prove that the evidence was insufficient to support her convictions. But the Court of Appeals agreed that a portion of her overall sentence should be vacated based on double jeopardy grounds.

In Carolyn Boss v. State of Indiana, No. 49A05-1106-CR-320, Carolyn Boss argued the evidence was insufficient to support her convictions of failure to restrain three dogs and harboring non-immunized dogs. In 2008, the dogs escaped her yard and attacked Carole Bales as she walked down an alley. Two of the dogs also attacked Thomas Wimberly when he tried to help Bales. After a passerby alerted Boss to the attack, she called off the dogs and returned them to her yard.

Bales and Wimberly suffered extensive injuries, including permanent nerve damage. Bales was hospitalized for two weeks, and Wimberly was hospitalized for six weeks.

Animal control officer Deborah Dobbins responded to the scene and saw large gaps in the chain link fence in Boss’ yard. A third dog was tied to a tree, but its collar was so loose that it slipped off the dog’s head. Dobbins observed blood on all three dogs

Boss explained she was taking care of the dogs, which belonged to her incarcerated son. The dogs had no rabies tags, and Boss had no vaccination records for the animals. Boss voluntarily surrendered the animals to Animal Care & Control.  

The state charged Boss with six counts of Class A misdemeanor failure to restrain a dog and six counts of Class B misdemeanor harboring a non-immunized dog. She received an aggregate sentence of two years for the Class A misdemeanors and concurrent 180-day sentences for the Class B misdemeanors — to be served concurrently with the two-year sentence. She also received 168 days of probation.

The COA held that the dilapidated fence and the ill-fitting collar indicate Boss failed to take reasonable steps to restrain the animals and that the lack of rabies tags and immunization records would allow one to reasonably infer the dogs were not immunized.

The appellate judges agreed with Boss’ assertion that she was subjected to double jeopardy when her convictions for harboring a non-immunized dog were elevated to a Class B misdemeanor on the same type of bodily injury elevating her convictions for failure to restrain a dog to a Class A misdemeanor. They remanded with directions to vacate the convictions and sentences for harboring non-immunized dogs and enter a determination that Boss committed Class C infractions, rather than Class B misdemeanors.

Boss claimed her two one-year consecutive sentences violated the 14th Amendment, but the COA noted that it can’t address a constitutional question when a decision can be based on any other statutory or common-law basis. While Boss’ failure to restrain the dogs was a single act, it resulted in separate harms to separate people. The COA could not say that Boss is entitled to a limit on her sentence pursuant to Indiana Code section 35-50-1-2.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

ADVERTISEMENT