STATE OF CONNECTICUT v. FREDERICK ACKER
AC 36578
Appellate Court of Connecticut
October 27, 2015
Sheldon, Prescott and West, Js.
Argued February 5
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(Appeal from Superior Court, judicial district of Litchfield, geographical area number eighteen, Danaher,
Frederick B. Acker, self-represented, with whom, on the brief, was Ralph C. Crozier, for the appellant (defendant).
Lisa A. Riggione, senior assistant state‘s attorney, with whom were Meredith S. Blake, special deputy assistant state‘s attorney, and, on the brief, David S. Shepack, state‘s attorney, and Devin T. Stilson, supervisory assistant state‘s attorney, for the appellee (state).
Opinion
WEST, J. The defendant, Frederick Acker, appeals from the judgment of conviction of fifteen counts of animal cruelty in violation of
The record reveals the following facts and procedural history. In the fall of 2012, the defendant was the director of a private organization, Connecticut Pets Alive, Inc., also known as the Society for the Prevention of Cruelty to Animals of Connecticut, Inc., which maintained a nonprofit facility to house rescued dogs in Monroe. In October, 2012, the defendant, on behalf of Connecticut Pets Alive, Inc., rented a second, larger rescue facility in Bethlehem (Bethlehem facility).2 The Bethlehem facility was a three section barn with garage doors, a concrete floor, and an open rafter roof. The defendant rented the right and center bays of the barn. His plan was for the dogs to be kept in the right, unfinished bay until the construction on the center bay was completed, after which the plan was to move the dogs to the center bay and complete the right section.
On October 10, 2012, a dog escaped from the Bethlehem facility. On October 11, 2012, Judy Umstead, a Bethlehem/Woodbury Animal Control Officer, received a complaint about a dog on Route 63 and found a dog dead on the side of the road. Umstead visited the Bethlehem facility and determined that the dog that had been struck by a car was the dog that had escaped.
On October 17, 2012, Umstead returned to the Bethlehem facility with Department
After the visit, Gregan called the defendant to voice his concerns that cold weather was coming and that the Bethlehem facility was inadequately heated. Gregan advised the defendant that the space heaters were inadequate for the Bethlehem facility. In response to Gregan‘s concerns, the defendant explained that he knew the overnight temperatures were getting colder, and that he boarded the small dogs overnight with his veterinarian, David Basak-Smith, so that they could be warm.3 The defendant stated that he was making plans to heat the building properly, and to address most, if not all, of the concerns Gregan voiced.
On November 8, 2012, at approximately 7:45 a.m., State Trooper Matthew Eagleston and Umstead arrived at the Bethlehem facility because they were concerned about the cold temperatures. The approximate high and low outdoor temperatures in Morris on November 6, 7, and 8, 2012, were 38 and 20 degrees, 33 and 27 degrees, and 35 and 31 degrees, respectively.4 There was light to moderate snow on November 7, 2012, and the winds on November 8, 2012, ranged from a low of 10 miles per hour to a high of 27 miles per hour. An employee of the defendant arrived shortly after 7:45 a.m., and gave Eagleston and Umstead permission to enter the Bethlehem facility and look around. The conditions inside the Bethlehem facility were very cold and drafty, with two operating space heaters providing little heat. Many of the dogs were in travel size crates intended for short-term confinement, with no bedding other than some newspaper.
After leaving the Bethlehem facility, Eagleston prepared a search and seizure warrant to seize the dogs and have them evaluated by a veterinarian. At 3:30 p.m. that day, Eagleston and the search team entered the Bethlehem facility to execute the warrant. Eagleston observed that a thermometer near one of the space heaters indicated that the temperature was 36 degrees. Each dog was briefly evaluated by a veterinarian, Bradley Davis, photographed by the state police, and then removed from the Bethlehem facility by Davis and animal control officers.
On December 2, 2013, the state filed an amended long form information charging the defendant with sixty-three counts of animal cruelty in violation of
After a trial to the court, Danaher, J., the defendant was convicted of fifteen counts5 and acquitted of the remaining
In the present case, the trial court found: “[U]nlike the situation in Koczur where the cats at issue were within the defendant‘s residence and presumably had [some] freedom to move about, the dogs in this case spent most of their days, and up to sixteen hours overnight, confined in carriers. Many of the latter carriers were intended for transport and not long-term confinement. Further, the dogs were confined in a facility that was not sufficiently heated. In Koczur most of the animals required further medical treatment after they were seized; in this case most of the dogs that were seized did not require treatment for conditions related to their confinement. However, there were fifteen dogs that were in jeopardy on the date they were seized, due to the low temperature in the environment where the defendant had confined them. The latter fifteen dogs required transfer to a warm environment when they were seized.”
The court further found: “Some of the dogs seized in this case were of a size and breed which made them particularly susceptible to cold temperatures. The defendant was on notice that the lack of heat in the facility was problematic; and although the defendant made some efforts to ameliorate the cold conditions in which the dogs were confined, those efforts were inadequate as to some of the dogs. The fact that the defendant was on notice that the facility was unheated, the fact that he made meager efforts to address the cold temperatures to which the dogs were exposed, the fact that he misled an animal control officer as to the manner in which he cared for smaller dogs at night, all coupled with the testimony regarding the conditions at the facility on the date of the seizure, combine to convince the court that the state established, beyond a reasonable doubt, that a person of ordinary intelligence would know that the manner in which certain small dogs were confined was not proper care.”
The court concluded that the defendant had failed to give proper care to fifteen dogs “by exposing those dogs to conditions injurious to their well-being [by confining] those dogs in a facility that, in view of the nature of the confinement, provided inadequate heat for the size and breed of the . . . dogs.” The court imposed a total effective sentence on all charges of six months incarceration, execution suspended, followed by two years probation. This appeal followed.
I
The defendant‘s first claim is difficult to decipher. He titles his first claim: “The court applied an improper standard in finding the defendant guilty pursuant to
We begin by setting forth the standard of review that informs our analysis. “In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the [decision]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own judgment for that of the [fact finder] if there is sufficient evidence to support the [decision]. . . . Moreover, 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 [finder of fact‘s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Revels, 313 Conn. 762, 778, 99 A.3d 1130 (2014).
We also are mindful that “[q]uestions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the [finder] of fact‘s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Pettigrew, 124 Conn. App. 9, 31, 3 A.3d 148, cert. denied, 299 Conn. 916, 10 A.3d 1052 (2010).
We conclude that the totality of the evidence was sufficient to allow the court to conclude beyond a reasonable doubt that the defendant did not provide proper care to the fifteen dogs. The defendant was warned that cold weather was coming and that the Bethlehem facility was inadequately heated. He was advised that the space heaters were inadequate, and he misled an animal control officer as to how he cared for the small dogs overnight. The trial court credited the testimony of Davis and Eagleston that on November 8, 2012, there were only two space heaters in the Bethlehem facility, the space heaters gave off very little heat, and the temperature inside the Bethlehem facility was as low as 36 degrees. The record before us also includes the testimony from multiple witnesses, including Davis and Gregan, that many of the dogs were in travel size crates intended for short-term confinement only, with no bedding other than some urine soaked newspaper that was pushed to the side in many of the crates. The fifteen dogs were cold and struggling to maintain their body temperatures, as evidenced by their violent shivering.7 Additionally, the fifteen small dogs required transfer to a warmer environment when they were seized because they were cold and violently shivering. Construing the evidence in the light most favorable to sustaining the decision, we hold that the evidence was sufficient to support a finding beyond a reasonable doubt that the defendant confined and failed to provide proper care to the fifteen dogs in violation of
We next address the defendant‘s claim that
“A statute . . . [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. . . . Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. . . . A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity. . . . To demonstrate that [a statute] is unconstitutionally vague as applied to [him], the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . Unless a vagueness claim implicates the first amendment right to free speech, [a] defendant whose conduct clearly comes within a statute‘s unmistakable core of prohibited conduct may not challenge the statute because it is vague as applied to some hypothetical situation . . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) State ex rel. Gregan v. Koczur, supra, 287 Conn. 156-57.
As stated previously,
Here, the question is whether the statute put the defendant on sufficient notice that the manner in which he cared for the dogs in his charge or custody was improper and, thus, violated the statute, by failing to provide them with proper protection from the cold. The manifest purpose of the statute is to ensure that no impounded or confined animal, including any dog, is exposed by its caretaker to conditions harmful to its health or well-being. Such harmful conditions can result from extremes in temperature, extreme dampness or dryness, or unsafe exposure to wind, hail, lightning, or other atmospheric phenomena that, alone or in combination, risk harming the animal‘s health or physical condition. See generally
What is—or ought to be—clear to any caretaker of an animal in his charge or custody, however, is when that animal exhibits physical or behavioral signs that it has begun to suffer adverse effects from its exposure to extreme conditions. When the animal displays visible signs of distress resulting from its exposure to extreme temperatures, the caretaker is placed on notice that the manner in which he is keeping the animal has placed the animal at risk of suffering illness or physical harm. Conduct by a caretaker, which places an animal in his charge or custody at such a risk of illness or physical harm that it begins to exhibit the visible signs of such illness or harm, clearly lies at the “statute‘s unmistakable core of prohibited conduct . . . .” (Internal quotation marks omitted.) State ex rel. Gregan v. Koczur, supra, 287 Conn. 156.
In this case, although the fifteen dogs, whose exposure to extreme cold underlay the defendant‘s convictions, were of different breeds and sizes, they all shared the common characteristic that, when observed in the place where the defendant had confined them, all were exhibiting the initial signs of hypothermia. Each was severely shaking to supply itself with warmth not otherwise available to it from its bedding or the defendant‘s electronic heaters, thus, in the opinion of a veterinarian, requiring the animal‘s immediate removal to a warmer environment. The conduct that caused each of these dogs to be kept in such conditions, despite their visible, weather induced suffering, clearly lies at the unmistakable core of the conduct which any person of ordinary intelligence would know to be proscribed by the statute. On that basis, we conclude that
The judgment is affirmed.
In this opinion the other judges concurred.