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

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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.

 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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