Markee Deloney, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

[1] Markee Deloney appeals his two convictions of Class A misdemeanor cruelty to an animal.¹ Deloney argues the evidence is insufficient to support his convictions. We affirm.

Facts and Procedural History

[2] On March 28, 2023, Deloney brought Xeena, his four-year-old female black labrador retriever, into the VCA Animal Hospital in Plainfield. He was met by VCA employee Olivia Woodruff, and he told Woodruff that Xeena had collapsed but he did not know why. Woodruff asked if Deloney had just found the dog because her collar was too big, and Deloney reported that “he had her for a few years and she's always been thin.” (Tr. Vol. 2 at 57.) Xeena was so thin that “pretty well all the spine” was visible to an observer. (Id. at 60.) Xeena was too weak to stand or lift her head, and she barely kept her eyes open. Woodruff carried Xeena back to the treatment area to check her vital signs and found her heart rate was elevated and her temperature was low. Xeena weighed twenty pounds, which was twenty to forty pounds less than expected for a dog of her age and breed.

[3] Woodruff called for the veterinarian, Dr. Eric Boone, to assess Xeena. Dr. Boone ordered an ultrasound to determine whether an obvious cause for Xeena's condition existed, but nothing obvious was discovered. Dr. Boone had never seen a dog as skinny as Xeena and he described her thus:

Initially when I saw her she was unable to stand and mentally inappropriate, what I would call critical condition. So very concerned that she could pass away at any time. You could see her ribs from a fair distance away and all of her bone structure as well. She did not appear to have any significant musculature or fat deposits.

(Id. at 67.) He assigned Xeena a score of “one out of nine” on the body condition score that is commonly used to rate a dog. (Id. at 67.) Dr. Boone recommended Deloney take Xeena to a twenty-four-hour clinic because the VCA was about to close and Xeena's hypothermia and low body weight necessitated “IV fluids and around the clock care.” (Id. at 62.)

[4] Deloney left VCA and took Xeena to Veterinary Specialty and Emergency Care West in Speedway. The veterinarian on duty there was Dr. Jacqueline Kulish. Dr. Kulish believed Xeena to be a three or four-year-old labrador retriever that should weigh about sixty pounds but weighed only twenty-one pounds. On the nine-point body condition scale, Dr. Kulish assigned Xeena a “zero because technically we can't go lower than one, but I felt I had to express it in some manner.” (Id. at 79.) Xeena's hips were visible, which should not be possible on a healthy dog. Dr. Kulish tested Xeena's blood sugar and found it was thirty-one, when the normal range is 80 to 120, and her temperature was 94 when it should have been 99.5 to 103.5. Deloney claimed Xeena had been behaving normally until she collapsed that morning, but Dr. Kulish did not believe that was likely given how thin Xeena was. Dr. Kulish believed Xeena's condition was caused by “malnutrition.” (Id. at 82.) She thought it would have taken “three to six months” of a healthy dog receiving only water for the dog to be as skinny as Xeena. (Id. at 83.)

[5] Dr. Kulish recommended a full workup on Xeena to determine the underlying cause of her condition so that Xeena could be treated for that condition. She also gave Deloney two other options – taking Xeena home, which would be against medical advice, or euthanizing Xeena to relieve her suffering. Deloney chose to take Xeena home against medical advice. Dr. Kulish gave Deloney prescription medication to address nausea and pain.

[6] The next day, Woodruff called Animal Control to report Xeena's condition because: “It's something that was very jarring to me. I've never seen a dog in that poor of state and I had not slept very well without reporting it.” (Id. at 63-64.) On March 30, 2023, Nicholas O'Hare, a Sheriff's Deputy who worked at Hendricks County Animal Control, received the report about Xeena. Deputy O'Hare went to the address that he was given. No one answered the door, so Deputy O'Hare left a card on the door that asked the owner to call him. Deloney called Deputy O'Hare and reported that Xeena had been to the veterinarian and “everything's good[.]” (Id. at 105.) Deloney was upset that animal control was aware of his dog, but he made an appointment for Deputy O'Hare to see Xeena on March 31, 2023.

[7] On March 31, 2023, when Deputy O'Hare went to Deloney's house, Deloney would not let him into the house and would not allow him to see Xeena. Deputy O'Hare called dispatch and requested additional officers come to the scene. Deputy O'Hare was sitting in his vehicle drafting an affidavit for a search warrant when Deloney brought Xeena out for Deputy O'Hare to see her. Xeena was unable to walk on her own. She was “shaking” and “falling over[,]” (id. at 106), and Deloney was holding her up. Deloney continued to refuse to allow Deputy O'Hare into his apartment, so Deputy O'Hare finished drafting the search warrant affidavit. After a judge signed the warrant, Deputy O'Hare returned to Deloney's apartment with two officers to serve the search warrant and seize Xeena. At that point, Xeena was standing on her own, but she was “wobbly” and not walking around. (Id. at 110.) While in the apartment to seize Xeena, Deputy O'Hare saw Deloney had a second dog, a brown Boxer mix that Deputy O'Hare estimated was a two out of nine on the body condition scale for dogs. The officers seized Xeena but left the second dog in Deloney's custody at that time.

[8] On April 3, 2023, the State charged Deloney with Class A misdemeanor cruelty to an animal in an information that alleged Deloney “having a vertebrate animal in his custody, to wit: Xeena, a canine labrador retriever, did recklessly, knowingly or intentionally abandon or neglect said animal.”² (Appellant's App. Vol. 2 at 20.)

[9] On April 4, 2023, Ladonna Hughes, the Chief Animal Control Officer and Shelter Director at Hendricks County Animal Control, went to Deloney's house to check on the condition of the brown Boxer mix, which was a female named Newt. Chief Hughes noted Newt “was in a crate without a bottom, no food, no water.” (Tr. Vol. 2 at 117.) There also was no bedding in the crate. Chief Hughes estimated Newt was a three out of nine on the body condition scale for dogs, and she took Newt into custody. On April 5, 2023, the State charged Deloney with a second count of Class A misdemeanor cruelty to an animal that alleged he abandoned or neglected “Newt, a canine boxer mix[.]” (Appellant's App. Vol. 2 at 31.)

[10] The trial court held a jury trial on March 5, 2024. The jury found Deloney guilty of both counts of cruelty to an animal. On April 4, 2024, the trial court held a sentencing hearing. The trial court imposed a 365-day sentence for each count and ordered the sentences served consecutively. The court suspended 353 days of each sentence to probation and ordered Deloney to execute four consecutive weekends in jail. The court also ordered Deloney to pay restitution and to “serve 40 hours public service at Hendricks County Animal Shelter or Humane Society.” (Id. at 124.)

Discussion and Decision

[11] Deloney challenges the sufficiency of the evidence supporting his convictions. When faced with challenges to the sufficiency of evidence, we apply a “well settled” standard of review that leaves determinations of the weight of the evidence and credibility of the witnesses to the fact-finder. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). “We consider only the evidence most favorable to the trial court's ruling and will affirm a defendant's conviction unless ‘no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ ” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).

[12] Deloney was convicted of two counts of Class A misdemeanor cruelty to an animal, and he contends the State failed to satisfy its burden of proof. Class A misdemeanor animal cruelty is committed when a person: “(1) has a vertebrate animal in the person's custody; and (2) recklessly, knowingly, or intentionally abandons or neglects the animal[.]” Ind. Code § 35-46-3-7. The lowest of those three possible mens rea is reckless. See McDowell v. State, 102 N.E.3d 924, 931 (Ind. Ct. App. 2018) (murder requires knowingly or intentionally killing a human being, and reckless homicide involves recklessly killing a human being; “[r]eckless homicide is therefore an inherently included offense of murder”), trans. denied. A person acts “recklessly” when that person “engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.” Ind. Code § 35-41-2-2(c).

[13] Deloney argues “[t]he evidence was insufficient to show that the animals were neglected when there was no testimony that could definitively identify that the animal's conditions were a direct result of underfeeding by their owner as opposed to something else.” (Appellant's Br. at 17.) However, “[t]he State is not required to prove mens rea by direct and positive evidence.” Baxter v. State, 891 N.E.2d 110, 121 (Ind. Ct. App. 2008). Rather, a defendant's mens rea may be inferred from circumstantial evidence. Id.

[14] Here, the circumstantial evidence was that both Xeena and Newt were underweight – Xeena weighed less than half of what she should have weighed and was so weak that she could no longer stand on her own. Newt was a two or three on the nine-point scale for a dog's body condition. Dr. Boone estimated it would take “months to years” of denying food to get a dog as thin as Xeena had been. (Tr. Vol. 2 at 69.) Within months of being removed from Deloney's custody and receiving appropriate nourishment, both dogs had recovered to a healthy weight for their breed and age. Deloney notes that veterinarians hypothesized multiple health conditions as possible causes of Xeena's dangerously low weight, but neither dog needed medical treatment for any medical condition to recover fully; they needed only to be fed appropriately. In light of all of this evidence, a trier-of-fact could reasonably infer that Deloney at least recklessly underfed the dogs that were in his care. See Baxter, 891 N.E.2d at 121 (when multiple witnesses described horses as malnourished or not properly cared for, and horses’ health improved considerably after removal from Baxter, evidence was sufficient to demonstrate Baxter was at least reckless).

[15] Deloney cites his own testimony as demonstrating that he cared for the animals, because he kept their cages clean, he took them for runs, and he brought Xeena for treatment when she could not stand. However, as an appellate court, we are constrained to look only at the facts most favorable to the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (“appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict”) (emphasis in original). Deloney is asking us to reweigh the evidence presented to the jury, which we decline to do. See Miller v. State, 952 N.E.2d 292, 294 (Ind. Ct. App. 2011) (declining defendant's invitation to reweigh evidence), trans. denied. Accordingly, we cannot overturn Deloney's convictions. See Baxter, 891 N.E.2d 110, 121 (Ind. Ct. App. 2008) (affirming animal cruelty convictions when supported by State's evidence).

Conclusion

[16] The facts most favorable to the jury's determination – that Xeena and Newt were severely malnourished while in Deloney's care but returned to normal weight, without interventions for any underlying medical condition, when removed from Deloney's care and fed regularly – support Deloney's convictions. We accordingly affirm the trial court's judgment.

[17] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-46-3-7.

2.   That filing also included a charge of Level 6 felony impersonation of a public servant because “Deloney did falsely represent that he was a law enforcement officer and did so with the intent to deceive Nicholas O'Hare.” (App. Vol. 2 at 19.) The State dismissed this charge prior to selection of the jury for Deloney's trial.

May, Judge.

Judges Tavitas and DeBoer concur. Tavitas, J., and DeBoer, J., concur.