Full Case Name:  Commonwealth v. David Bishop

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Country of Origin:  United States Court Name:  Appeals Court of Massachusetts Primary Citation:  67 Mass.App.Ct. 1116 (2006) Date of Decision:  Monday, November 20, 2006 Jurisdiction Level:  Massachusetts Docket Num:  05-P-682

David Bishop was convicted of animal cruelty and failing to provide a sanitary environment for his five dogs. He was ordered to pay over $60,000 in order to provide for the medical expenses that his dogs needed after they were taken away from him. While defendant argued that the amount of restitution was excessive, the court found that each of the five dogs had medical bills in excess of $10,000. Defendant was sentenced to three months in a house of corrections, and ten years probation.

David Bishop was found guilty on seven counts of animal cruelty, pursuant to G.L. c. 272, § 77 (A.1-2, 4-5), and was sentenced to three months in the house of correction and ten years probation. The defendant was also ordered to pay restitution to the Massachusetts Society for the Prevention of Cruelty to Animals (MSPCA). (A. 1-2; Tr. 2:79-80) The defendant has appealed.

The defendant argues that the Commonwealth did not present sufficient evidence to support his convictions. We conclude that the Commonwealth satisfied its burden of proof that the defendant violated G.L. c. 272, § 77.

The Commonwealth presented testimony of several witnesses describing the dogs' conditions as well as photographs taken at that time. That evidence showed that all the dogs were malnourished. They were emaciated, with their eyes sunken in and crusted over with discharge, their bodies caved in and hip bones, ribs, and backbones showing, and they had patches of fur missing and were lethargic. There was also expert opinion testimony from two licensed veterinarians, one who examined the dogs upon their removal from the defendant's care and one who treated the dogs for months thereafter. Both veterinarians concluded that the dogs were emaciated, not from any pre-existing ailments but from malnutrition as well as lack of adequate veterinary care for their other ailments. (Tr. 1:123-129, 143, 151-160)

(1) The defendant's argument that the evidence was insufficient because the animal control officers and expert veterinarians used arbitrary and capricious methods of evaluation rather than relying on the weight categories propounded by the American Kennel Club is unavailing. First, the defendant never objected to the scientific validity of the evaluation methods used by the licensed veterinarians that testified. See Commonwealth v. Hill, 54 Mass.App.Ct. 690, 697, 767 N.E.2d 1078 (2002), citing Commonwealth v. Beausoleil, 397 Mass. 206, 220-221, 490 N.E.2d 788 (1986). Also, the methods of determining a dog's proper weight that licensed veterinarians are trained to use differs from the methods that the American Kennel Club uses. Dr. Manning testified that even if the dogs had been within the American Kennel Club weight ranges for Plott Hounds, the evidence was still sufficient to show malnutrition because the American Kennel Club method did not take into consideration the dog's frame. (Tr. 1:168, 170-173) Both veterinarians attributed the dogs' underweight conditions to being underfed. (Tr. 1:124-129, 151-160) Thus, by failing to provide necessary sustenance to his dogs, it may be fairly inferred that the defendant violated G.L. c. 272, § 77.

The defendant's argument that there was no intent to under-feed the dogs is without merit. General Laws c. 272, § 77, criminalizing the deprivation of "necessary sustenance," does not contain an intent element. It need not appear that the defendant knew that he was violating the statute and that he was willing to do so, "but only that he intentionally and knowingly did acts which were plainly of a nature to inflict" the violation. Commonwealth v. Magoon, 172 Mass. 214, 216, 51 N.E. 1082 (1898). Where a statute is silent as to the intent of the defendant, we find it sufficient to show that the Legislature intended to exclude it. States may "create strict criminal liabilities by defining criminal offenses without any element of scienter." Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), citing Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). See Commonwealth v. Knap, 412 Mass. 712, 715, 592 N.E.2d 747 (1992).

(2) There was abundant evidence to support the defendant's conviction on two counts of deprivation of a sanitary environment. See Commonwealth v. Robinson, 444 Mass. 102, 108, 825 N.E.2d 1021 (2005). A rational fact finder could have found that an unsanitary environment existed from the testimony of Officers Parkhurst and Macinanti and from the photographs admitted in evidence showing the state of the kennels.

The officers testified that there was a large "accumulation" or "days worth" of fecal matter in the kennels. There was also evidence that at least two of the dogs were found shut in the kennels and forced to move around and step into their own feces. (Tr. 59-60, 62, 105-106, 108) The defendant argues that to be found guilty of the charges there would have to be at least a week's worth of fecal matter to rise to the level of animal cruelty. We disagree. A rational trier of fact could have found that each element of the crime charged was proved beyond a reasonable doubt from the evidence presented. There is no rule that states how many days of an accumulation of feces is unacceptable. The fact that a large amount of feces existed can prove that an unsanitary environment exists, notwithstanding the fact that there was shelter.

(3) The defendant next argues that the amount of restitution awarded to the MSPCA and its affiliate Angell Animal Medical Center (hospital) was excessive. The amount to be paid was set at $61,049.43. Each of the five dogs taken into custody had bills in excess of $10,000. The defendant argues that the Commonwealth failed to prove that all of the medical care provided by the hospital was necessary as a direct result of the defendant's conduct.

The defendant's argument that certain medical treatments were not causally related to his conduct fails. In particular, the defendant argues that the dogs' eye problems were from a physical condition called "dry eye" and not related to his improper care. The defendant also argues that testimony failed to establish the causation of anemia diagnosed in one dog and testimony failed to support that the removal of a tumor on another dog was medically necessary.
"There must be a connection between the injury and the crime of conviction for restitution to serve as a functional sanction, rationally related in cognizable terms to the crime." Commonwealth v. McIntyre, 436 Mass. 829, 834, 767 N.E.2d 578 (2002). The Commonwealth need only show by a preponderance of the evidence that the restitution it seeks is for "loss or damage [that] is causally connected to the offense and bears a significant relationship to the offense." Id. at 835, 767 N.E.2d 578, quoting from Glaubius v. State, 688 So.2d 913, 915 (Fla.1997). Pending trial, the dogs were in the physical custody of the MSPCA. The MSPCA was forced to assume the daily care and boarding of the dogs along with the medical treatment rendered by the hospital due to the debilitated state the dogs were in when brought to the MSPCA. Routine care of the dogs was necessary; that care included diagnosis of the medical conditions that existed in each dog from their malnourished state occasioned by the defendant's improper care. In addition, the defendant refused to surrender the dogs to the custody of MSPCA, as he stated he could sell them later and recoup some money. Therefore, as the defendant still maintained legal custody of the dogs, the MSPCA had no other option but to care for the dogs in its custody. In short, all expenses of properly caring for the dogs rests on their owner, the defendant.

(4) The defendant argues that the restitution award was excessive in light of the defendant's financial situation. The defendant argued that the judge did not consider whether he was financially able to pay the amount ordered. See Model Sentencing and Corrections Act § 3-601(d), 10 U.L.A. (Master ed.2001). The defendant also argues that because he is not financially able to pay the full amount at once, the judge erred by not setting up a payment plan. Both arguments are to no avail.

General Laws c. 276, § 92, provides the court with the power to require that a defendant make restitution payments to a probation officer if the defendant is unable to pay the entire amount of the restitution at once. See Commonwealth v. McIntyre, 436 Mass. at 832, 767 N.E.2d 578. Contrary to the defendant's assertions regarding having to pay the entire restitution amount, the defendant was to pay the amount over the course of his ten year probation. Here, the judge told the defendant that he needed to check with the probation department before leaving in order to have that department set the terms of his probationary period, including payment of the restitution award. (Tr. 23) The probation department informed the defendant of the restitution amount and planned to set up a payment plan over the course of his probationary period. (S.R.A.36-37) The defendant was made aware of the payment plan and was not expected to pay the full amount at once.

Regarding the defendant's ability to pay, the defendant did not object to paying the restitution award and also noted to the probation officer that he was going to borrow money from a relative to begin the payment plan. (S.R.A.37) Where a defendant has objections to the amount of the payment plan, he can bring those objections to the judge during his probationary progress reviews. The judge established a three-month review date, thereby affording the defendant an opportunity to request a modification at that point. We thus conclude that the restitution amount was not excessive due to the payment plan set up for the defendant over the course of his probationary period.

We need not address the defendant's argument that defense counsel should have moved for a required finding of not guilty based on lack of evidence during the trial. There was sufficient evidence for a rational trier of fact to find that the defendant committed seven counts of animal cruelty. Accordingly, we affirm the defendant's judgments of conviction and the order of restitution. So ordered.

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