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State v. Hearl

Court of Appeals of Connecticut

May 29, 2018

STATE OF CONNECTICUT
v.
MICHAEL A. HEARL

          Argued December 7, 2017

         Procedural History

         Substitute information charging the defendant with nineteen counts of the crime of cruelty to animals, brought to the Superior Court in the judicial district of Litchfield, geographical area number eighteen, and tried to the jury before Matasavage, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

          Jon L. Schoenhorn, with whom, on the brief, was Ariel R. MacPherson, for the appellant (defendant).

          Gregory L. Borrelli, deputy assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Devin T. Stilson, supervisory assistant state's attorney, for the appellee (state).

          Sheldon, Keller and Eveleigh, Js.

          OPINION

          KELLER, J.

         The defendant, Michael A. Hearl, appeals from the judgment of conviction, rendered following a jury trial, on nineteen counts of animal cruelty in violation of General Statutes § 53-247 (a).[1] The defendant claims that (1) the evidence adduced at trial was insufficient to sustain his conviction, (2) the trial court did not provide the jury with a proper instruction on the required mental state to prove a violation of § 53-247 (a), (3) § 53-247 (a) is unconstitutionally vague as applied to his conduct, and (4) his conviction and sentencing on nineteen separate counts of animal cruelty violates the constitutional prohibitions against double jeopardy. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the fall of 2013, the defendant and Tara Bryson, his business partner, moved their goat cheese manufacturing business, Butterfield Farm (business), to Hautboy Hill Farm (farm) in the town of Cornwall. In May, 2014, the defendant and Bryson relocated a herd of goats to the farm from Massachusetts. The defendant and Bryson negotiated an oral lease with Allyn H. Hurlburt III, the owner of the farm, to house the goats in Hurlburt's barn. Hurlburt made it clear that the lease covered only the rental of the barn space and was not a boarding lease. In a boarding lease, the lessor agrees to provide care for the animals in addition to the space to house them. The barn the defendant moved the goats into was an open style barn, which means that it did not have fully enclosed walls. As the farm was located on an exposed hill with little topographical protection from the elements, cold winds would gust through the open walls of the barn. Previously, Hurlburt used the barn to house 100 dairy cattle. Hurlburt had remodeled the barn such that it had a ridge vent in the roof. This modification of the barn was suitable for dairy cattle, which produce a great deal of heat. This modification, however, was not suitable for goats, and it permitted rain and snow to enter the barn.

         Donald Betti rented the other half of the barn in order to store his prized dairy cattle, and he had the opportunity to observe the goats frequently. During the summer of 2014, the defendant visited the farm frequently. The defendant's visits, however, became less and less frequent with time. The defendant and Bryson hired Kim Lamarre and Kyle Brimmer to care for the herd. Betti, through his observations of the herd, became increasingly concerned about the health of the goats. In July, 2014, Betti alerted Chris Stroker, a state milk inspector, to his concerns about the health of the goats. On September 17, 2014, the state Department of Agriculture (department) suspended the business' permit to produce milk in order to make cheese and instructed that produced milk be given to the kid goats. Betti's concerns were not alleviated, and in October, 2014, he e-mailed Elizabeth Hall, an agriculture and marketing inspector for the department, about the health of the goats. In particular, he was concerned about the presence of sore mouth, a type of fungal infection, in some of the baby goats. Betti observed that the condition of the goats continued to deteriorate during the fall. The goats appeared emaciated and mortality rates increased. Betti observed that the goats had a sickly appearance and that there was a high mortality rate, especially among the babies, but he observed that the goats did not appear to be under the care of a veterinarian.

         On December 22, 2014, an animal control officer visited the farm and filed a complaint with the department. In response, the department began an investigation into the conditions on the farm and, on December 23, issued a quarantine order due to the morbidity and mortality rates among the herd. At the time of issuing the quarantine order, the department was unsure if the condition of the goats was attributable to disease or poor herd management.

         Hall became involved with the investigation of the defendant's goats in December, 2014. On December 23, 2014, Hall made her first visit to the farm. She observed an accumulation of manure throughout the ‘‘cold, open barn, '' and inadequate bedding. There was a small amount of low quality[2] hay available for food. Hall described one goat as ‘‘depressed. She had her head down. She wasn't acting as inquisitive as most trouble-making goats are. She was very dull and lifeless.'' In addition, the goats were exhibiting signs of cold stress and shivering on a relatively mild 38 degree day. The feeding rack was not filled with hay. In derogation of common herd management practices, the goats were not separated by age, breed, milking status, or pregnancy status; instead, the goats roamed the barn as one unsorted unit.

         On December 26, 2014, Hall returned to the farm to assess if there were any changes with respect to feeding or the conditions generally. She observed a downed[3]buck named Grover Cleveland in the center alley of the barn. In the three days since Hall's prior visit, Grover Cleveland had moved only a couple of feet by wriggling around on the ground; he was covered in his own urine and his fur had been worn away from paddling like a dog in an attempt to pull himself onto his chest. The hay in the barn remained soiled and wet. The feeding rack was not filled with hay.

         On December 26, 2014, Dr. Bruce Sherman, a veterinarian with the department, joined Hall at the defendant's farm. Sherman observed multiple downed and emaciated goats. For example, Sherman saw a downed, white saanen[4] doe that ‘‘had a poor body condition . . . .'' This goat was emaciated, as indicated by its prominent vertebral processes and visible ribs. Sherman further observed that, ‘‘[t]he doe had been [downed] for quite a period of time. . . . [I]t had been . . . paddling, [which means that it had been] laying on its side moving its legs and in doing so moved . . . away what little hay and bedding that was there. There was a pile of fecal material behind it, indicating that the goat hadn't received any palliative care or nursing care to move it or try to get it up. . . . [T]he head of this animal had been moving back and forth and moving the hay away, and sort of digging into the soil underneath it.''

         Sherman further observed that conditions on the farm were inadequate. The goats were not receiving adequate nutrition and sporadically received water. Does did not have enough energy during the last trimester of pregnancy and, as a result, gave birth to underweight kids with low survival rates. Many of the goats were too weak to get up, and the barn did not provide adequate shelter from the weather. The goats were not separated into groups, a necessity for proper herd management. This allowed the remaining vigorous bucks to push out the smaller and weaker goats on the occasions when food was available. The barn also lacked a creep feeder, which is designed for adolescent goats to have a free choice of nutrients and to keep the adults out. Moreover, the herd was riddled with internal parasites and there were carcasses strewn throughout the barn.

         On December 28, 2014, Hall observed that conditions in the barn had not changed. The goats were not doing well and were not receiving adequate food or water. Hall noticed that more goats were coughing and exhibiting signs of cold stress. She also discovered more mortalities and that Grover Cleveland had not changed his location since her last visit. Dead goats were piled in a manger near where the hay was stored. The young goats had access to this area and would ‘‘play . . . on top of [the carcasses], '' exposing them to infectious materials. The feeding rack remained empty. Hall also noticed that there was a pregnant doe that was not receiving proper care. Sound farming practices dictate that expecting does be kept in a sanitized, dry area and that there should be a heat lamp for the newborns. The defendant was not providing these conditions at the farm.

         On December 29, 2014, three members of the department-Hall, Sherman, and Wayne Kasacek-had a conference call with the defendant and Bryson. The members of the department implored the defendant to take corrective actions in order to improve the conditions of the goats. Specifically, they recommended that a veterinarian assess the entire herd and provide feeding instructions. The defendant told the department that the goats had a condition known as meningeal worm. Sherman told the defendant that meningeal worm would not account for the morbidity and the mortality rates in the herd. In response, the defendant became combative and stated that he knew that the goats had meningeal worm because he ‘‘talked to a lot of farmers and had done research himself . . . .''

         On December 29, 2014, after speaking with representatives of the department, the defendant contacted a veterinarian, Dr. Katherine Kane. The defendant requested that Kane euthanize a goat in order to perform a necropsy. On December 30, Kane arrived to euthanize one animal.[5] Kane did not intend to remain at the farm for a long period of time, but she did so because the defendant was present and asked her many questions. The defendant informed her that the goats were suffering from meningeal worm[6] and that he had been treating them with fenbendazole. Kane, skeptical that the goats were suffering from meningeal worm, informed the defendant that meningeal worm could only be diagnosed with a necropsy, and that he and Bryson should not be ‘‘pouring more medication down all these animals.'' Kane also recommended that a second, healthier goat that the defendant and Bryson did not administer medicine to also be euthanized so that a necropsy could be performed on it. Ultimately, Kane euthanized Grover Cleveland and a doe. The preliminary results of the necropsy performed on Grover Cleveland revealed ‘‘muscle wasting, serious atrophy of fat and loss of fat stores . . . . It is likely . . . the presumed neurologic signs were the result of weakness related to a poor nutritional state.'' The final diagnosis, dated January 16, 2015, identified Grover Cleveland's ailments as coccidiosis, [7] nematodiasis, [8] emaciation (muscle wasting and serious atrophy of fat), [9] and splenic extramedullary hematopoiesis.[10] Meningeal worm was not found during the necropsy. On the basis of the preliminary results of the necropsies, Kane instructed the defendant how much the goats should be fed and that heat lamps needed to be installed.

         On January 7, 2015, Hall returned to the farm. Hall observed that, despite the discussions that had occurred between the defendant and the department concerning the condition of the goats, no changes had been made since her last visit. It was a cold day and the goats were huddled together for warmth in a pen with a fiberglass calf hutch because the barn did not have adequate bedding. By huddling together, the goats' respiration increased the humidity in this small hutch. The increased humidity caused their hair to become even more matted and made it more difficult for the goats to stay warm. There were heat lamps in the barn, but they were not being used, despite the department's recommendation to do so. There were two abandoned newborn kids that were still wet and in very unsanitary conditions. Another baby had been trampled to death.

         Hall returned to the farm on January 8, 2015. At this point, two heat lamps had been installed for the entire herd. The heat lamps were woefully inadequate to provide warmth for all the goats, and does were fighting with each other to get into one of the warm areas. The department's recommendation to provide shelter from the wind had not been heeded. The overall condition of the herd continued to decline, and it did not appear that the goats had been fed. One doe had symptoms of cacheous lymphadenitis, which is a ruptured lymph gland. Despite the highly contagious nature of this disease, the affected doe remained with the rest of the herd. The goats also did not have access to drinking water. The tub, which provided them access to fresh water, had frozen because the water heater in the tub was either broken or turned off.

         Hall visited the farm again on January 9, 2015, but found no improvement in the goats' care. Hall made her final three visits to the farm on January 11, 2015. On this day, Hall arrived just before 7 a.m. and stayed until 9:30 a.m. She saw Betti arrive to care for his cows and told him to call her if anyone came to attend to the goats. Hall returned at 4 p.m. and saw the defendant and Bryson arrive with a bale of hay. Fifteen minutes after arriving, the defendant and Bryson left the farm in the company van without caring for the goats. Hall came back to the farm for a third time that day at 5:45 p.m. to see if anyone had attended to the goats. Hall discovered that nothing had been done to care for the herd that day and became distraught. She began to give the goats hay and water with the help of Betti. The goats that were able to stand approached Hall anxiously as she fed them and were fighting amongst themselves for water. As Hall left the farm at 7:30 p.m., Brimmer arrived.

         The department seized the seventy-four surviving goats on January 16, 2015. Dr. Mary Jane Lis, a veterinarian with the department, assessed each goat and assigned each one a body score. The body score is a visual score on a scale of one to five that assesses the health of an individual goat-a goat that receives a score of one is very thin and emaciated, and a score of five would be assigned to an obese goat. The average score of the herd was two and one-half[11] and Lis assigned nineteen goats a score of one.[12]

         Two of the goats that received a score of one died within one week of the department seizing the herd. Necropsies were performed on these two goats, a male saanen and a female nubian.[13] The causes of death for the male saanen included chronic suppurative bronchopneumonia and pleuritis, [14] chronic lymphoplasmacytic tracheitis, [15] pulmonary nematodiasis, and emaciation. The female nubian died from interstitial neutrophilic and lymphocytic histiocytic pneumonia, pulmonary nematodiasis, centrilobular hepatocellular atrophy, [16]and serous atrophy of fat, which is an indication of chronic malnutrition or starvation.

         Lis tested the seventeen surviving seized goats with body scores of one for caprine arthritis encephalitis, caseous lymphadenitis, and Johne's disease. Caprine arthritis encephalitis is a preventable virus that impacts the longevity of a goat. It causes arthritis and decreases the production of milk. Only one of the seventeen goats tested negative for this disease. Caseous lymphadenitis is bacterial disease that causes boils or abscesses. Fourteen of the seized goats tested positive for this disease. Johne's disease is a bacterial disease that renders a goat unable to absorb nutrients. Three of the seventeen goats tested positive for this disease.

         The seventeen confiscated goats that received body scores of one were all extremely emaciated when the department took possession of them. One goat was described as a ‘‘walking frame . . . of bones, '' and many of the others were so thin that Lis could feel every one of their vertebrae when palpating them and their entire rib cages were visible. Their hooves were overgrown, which made walking difficult and painful. They each suffered from a variety of ailments and conditions, which included abscesses, lice, dermatitis, missing hair, difficulty breathing, and swelling and edema in both ears. Some goats had necrosis in the ear margins as a result of untreated ear infections. One goat, named Sasquatch, had been improperly dehorned.

         By May, 2015, the condition of the confiscated goats had improved dramatically under the department's care. A weigh-in on May 20, 2015, revealed that the seventeen goats gained an average of 19.2 pounds.[17]They appeared to have a ‘‘sassy'' demeanor, and their overall appearance had improved. Additional facts will be set forth as necessary.

         I

         First, the defendant claims that the evidence adduced at trial was insufficient to sustain his conviction of animal cruelty. We disagree.

         ‘‘The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

         ‘‘We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

         ‘‘Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

         ‘‘Ordinarily, intent can only be inferred by circumstantial evidence; it may be and usually is inferred from the defendant's conduct. . . . Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury's] verdict of guilty.'' (Citations omitted; internal quotation marks omitted.) State v. Campbell, 328 Conn. 444, 503- 505, A.3d (2018).

         Section 53-247 (a) provides in relevant part: ‘‘Any person who . . . having impounded or confined any animal, fails to give such animal proper care . . . or, having charge or custody of any animal . . . fails to provide it with proper food, drink or protection from the weather . . . shall, for a first offense, be fined not more than one thousand dollars or imprisoned not more than one year or both . . . .'' (Emphasis added.)

         Thus, to obtain a conviction in the present case, the state bore the burden of proving beyond a reasonable doubt that the defendant confined the goats and failed to give them proper care or that the defendant had charge or custody of the goats and failed to provide proper food, drink, or protection from the weather. See General Statutes § 53-247 (a). The defendant does not argue that the evidence was insufficient to establish either that the goats did not receive proper care or that the goats were not given adequate food, water, and shelter. Instead, he argues that the evidence was insufficient to prove that he confined, or had chargeorcustody of, the goats. As Connecticut case law has not addressed what constitutes ‘‘confinement'' or ‘‘charge or custody'' for the purpose of supporting a conviction for a violation of § 53-247 (a), the sufficiency issue presents a preliminary issue of statutory interpretation.

         ‘‘The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case . . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . . In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.'' (Footnote omitted; internal quotation marks omitted.) State v. Leak, 297 Conn. 524, 532-33, 998 A.2d 1182 (2010). ‘‘Issues of statutory construction raise questions of law, over which we exercise plenary review.'' (Internal quotation marks omitted.) State v. Fernando A., 294 Conn. 1, 13, 981 A.2d 427 (2009).

         We begin our plain meaning analysis of the statute by noting that the legislature did not define the terms ‘‘charge, '' ‘‘custody, '' or ‘‘confinement.'' Thus, we turn to the dictionary entries for common definitions of these terms. The term ‘‘charge''is defined as‘‘a duty or responsibility laid upon or entrusted to one'' or ‘‘anything or anybody committed to one's care or management.'' Random House Webster's Unabridged Dictionary (2d Ed. 2001). The term ‘‘custody'' is defined as ‘‘keeping; guardianship; care.'' Id. An individual with charge or custody of an animal must give that animal adequate food, water, and shelter from the elements. On the basis of the foregoing definitions, in the context of the statute, the terms ‘‘charge'' and ‘‘custody'' must necessarily describe when an individual has a duty to provide care for an animal. Thus, this clause of § 53-247 (a) punishes individuals who, having the responsibility to care for an animal, fail to do so. Last, ‘‘confined'' is defined as ‘‘limited or restricted.'' Id. Affording the animal cruelty statute its plain meaning, we conclude that it applies when someone limits an animal's ability to roam. By keeping an animal in a set location, responsibility then attaches to provide adequate care for that animal.

         The trial court instructed the jury in a manner consistent with our interpretation of § 53-247 (a). The court gave helpful examples[18] of what the terms ‘‘confined, '' ‘‘charge, '' and ‘‘custody''[19] mean in the context of the statute. The court instructed the jury as follows: ‘‘The state must prove that [the defendant] ...


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