## Facts

- Fereydoon “Fred” Boushehry was developing a subdivision in Marion County, Indiana.
- Boushehry asked Jim Waugh if he wanted to shoot geese; Waugh agreed.
- On a vacant lot adjacent to Boushehry’s home, Waugh used a .22-caliber rifle to fire several shots from roughly 25 yards, killing one Canada goose and wounding another.
- The shots were fired in the direction of Shelbyville Road, a public road bordering the lot.
- A neighbor observed Waugh casing the rifle and Boushehry pursuing the wounded goose; the neighbor’s son later saw Boushehry make a slitting motion across the goose and discard it as it struggled and then stopped moving.
- A conservation officer investigating an unlawful-taking complaint followed a trail of blood and feathers to Boushehry’s garage, where two freshly killed Canada geese were found.
- The trial court took judicial notice that the date was outside the legal hunting season for Canada geese.
- Boushehry was convicted of criminal recklessness (Class B misdemeanor), two counts of cruelty to an animal (Class A misdemeanors), two counts of illegal taking of migratory waterfowl (Class C misdemeanors), and two counts of illegal possession of migratory waterfowl (Class C misdemeanors), and acquitted of other charges.

## Issues

1. Whether the evidence was sufficient to support the criminal recklessness conviction based on firing a rifle in the direction of a public roadway.
2. Whether the evidence was sufficient to support cruelty-to-an-animal convictions where one goose was shot and another was wounded and then killed by throat-slitting allegedly to end its suffering.
3. Whether convictions for both illegal taking and illegal possession of the same migratory waterfowl were authorized under the governing statute.
4. Whether multiple convictions and sentences violated double jeopardy by imposing multiple punishments for the same conduct.

## Decision

- The court affirmed the criminal recklessness conviction, finding sufficient evidence that the shooting created a substantial risk of bodily injury to persons using the adjacent public road and that Boushehry instigated or aided the conduct.
- The court affirmed at least one cruelty-to-an-animal conviction, holding the fact-finder could treat the wounding and throat-slitting as prohibited “torture” or “mutilation,” and rejecting the “mercy killing” characterization where the defendant’s unlawful act caused the suffering.
- The court reversed in part as to the migratory waterfowl counts, concluding that some multiple convictions for taking and possessing the same birds were not permitted.
- The court reversed in part on double jeopardy grounds, vacating overlapping convictions that amounted to duplicative punishment, while leaving intact convictions addressing distinct harms and elements.
- Disposition: affirmed in part and reversed in part.

## Legal Principles

- Evidence is sufficient for criminal recklessness when a defendant’s conduct (including aiding or inducing another) involves firearm use that creates a substantial risk of bodily injury to others, such as firing toward an area used by the public.
- A defendant whose unlawful act causes an animal’s suffering may not avoid cruelty liability by claiming that a subsequent killing was necessary to prevent continued suffering.
- When statutory provisions criminalize closely related conduct (such as taking and possession of the same protected wildlife), legislative intent and merger principles may limit multiple convictions and punishments for the same birds.
- Double jeopardy prohibits multiple punishments for the same offense when convictions rest on the same factual basis and do not require proof of distinct elements; convictions addressing separate harms may stand.

## Conclusion

The court upheld convictions for endangering the public by inducing shots toward a roadway and for animal cruelty tied to unlawful conduct causing and prolonging suffering, but vacated certain wildlife-related convictions where statutory construction and double jeopardy barred multiple punishments for the same underlying acts.


Boushehry v. State, 648 N.E.2d 1174 (Ind. Ct. App. 1995)