Commonwealth v. Trefry ( 2016 )

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15-P-87 Appeals Court
COMMONWEALTH vs. LEANNE TREFRY.
No. 15-P-87.
Barnstable. May 23, 2016. - June 15, 2016.
Present: Katzmann, Maldonado, & Blake, JJ.
Dog. Statute, Construction.
Complaint received and sworn to in the Orleans Division of
the District Court Department on August 9, 2013.
The case was heard by H. Gregory Williams, J.
Roderick S. Oreste for the defendant.
Elizabeth Anne Sweeney, Assistant District Attorney, for
the Commonwealth.
KATZMANN, J. The defendant was convicted after a jury-
waived trial in District Court of two counts of violating a 2012
statute, G. L. c. 140, § 174E(f), which protects dogs from cruel
conditions and inhumane chaining or tethering.1 She now appeals,
challenging the sufficiency of the evidence. In this case of
1
The defendant was acquitted of two counts of animal
cruelty in violation of G. L. c. 272, § 77.
2
first impression, which requires review of the reach of G. L.
c. 140, § 174E, we conclude that subjecting a dog to cruel
conditions suffices to establish a violation, and we reject the
contention that outside confinement or confinement in general is
an element required to convict under the statute. Accordingly,
we affirm.
Background. After the defendant's house in Brewster
(property) had been condemned in August, 2012, and she had moved
into a nursing home, her two Shetland sheepdogs, Zach and Kenji,
remained on the property, where they had access to the inside of
the condemned house and a fenced-in yard.
Although the defendant herself was present on the property
at least intermittently even after the house had been condemned,
and she had occasional assistance from friends, the dogs were
effectively left alone on the property, which was clogged with
trash inside and out, emitted odors of trash (inside) and dog
feces (outside), and contained numerous items that would pose a
danger to the dogs' health and safety. Neighbors, animal
control officers, and police officers observed the deplorable
conditions to which Kenji and Zach were subjected.
On July 25, 2013, an animal control officer who had been
working with the defendant saw that Kenji was limping badly and
appeared to be in pain. He was taken to a veterinarian, and
both dogs were removed from the property three days later.
3
Discussion. The defendant's primary contention on appeal
is that G. L. c. 140, § 174E, inserted by St. 2012, c. 193,
§ 48, is inapplicable where there is no evidence that the dogs
were confined outside.2 We agree with the trial judge, however,
that this argument ignores subsection (f) of the statute, which
provides as follows:
"No person owning or keeping a dog shall subject the dog to
cruel conditions or inhumane chaining or the tethering at
any time. For the purposes of this subsection, 'cruel
conditions and inhumane chaining or tethering' shall
include, but not be limited to, the following conditions:
"(1) filthy and dirty confinement conditions including, but
not limited to, exposure to excessive animal waste,
garbage, dirty water, noxious odors, dangerous objects that
could injure or kill a dog upon contact or other
circumstances that could cause harm to a dog's physical or
emotional health;
"(2) taunting, prodding, hitting, harassing, threatening or
otherwise harming a tethered or confined dog; and
"(3) subjecting a dog to dangerous conditions, including
attacks by other animals."
G. L. c. 140, § 174E(f).
2
We note that the defendant's argument at trial with
respect to these charges in support of her motion for a required
finding of not guilty appears to have been based in part on the
caption of the statute ("Chaining or tethering dog to stationary
object; confinement; restrictions; penalty") as opposed to the
text of the statute itself. However, "[t]he title to an act
cannot control the plain provisions of the statute, although it
may be a guide to resolving an ambiguity in the legislation."
Breault v. Ford Motor Co., 364 Mass. 352, 353 n.2 (1973). As
shall be discussed infra, here, as in Breault, there is no
ambiguity.
4
The statute unambiguously sets out the prohibitions on
"cruel conditions," "inhumane chaining," and "the tethering"3 in
the disjunctive as alternative means of violating the statute.
See Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 270 (2013)
(use of word "or," "presumed to be disjunctive," "sets out two
alternative ways of committing the crime").
The plain meaning of the statute does not support the
defendant's narrow reading that outside confinement or, indeed,
confinement in general, is an element of the subjecting of dogs
to cruel conditions that is prohibited by this subsection. See
Commonwealth v. Gopaul, 86 Mass. App. Ct. 685, 687 (2014) ("As
with all matters of statutory interpretation, we look first to
the plain meaning of the statutory language. Where the language
of a statute is plain and unambiguous, it is conclusive as to
legislative intent" [quotations omitted]). "[F]ilthy and dirty
confinement" under § 174E(f)(1) is but one example of the kind
of cruel conditions that are prohibited. In addition,
§ 174E(f)(3)'s prohibition against subjecting dogs to dangerous
conditions is made, in contrast to § 174E(f)(1) and
§ 174E(f)(2), without any reference to confinement or tethering.
Furthermore, if subjecting a dog to "cruel conditions" as
set forth in § 174E(f) was not on its own sufficient to
3
The reference to "the" before "tethering" may be an
allusion to the first appearance of "tethering" in an earlier
paragraph of the statute, G. L. c. 140, § 174E(a).
5
establish liability -- in the absence of chaining or tethering
or some other means of confinement -- then such an
interpretation would render impermissibly superfluous the
inclusion of "confinement" in § 174E(f)(1) and "tethered or
confined" in § 174E(f)(2). See Arthur D. Little, Inc. v.
Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 541
(1985) ("[W]here the Legislature has employed specific language
in one [portion of a statute], but not in another, the language
should not be implied where it is not present" [quotation
omitted]); Commonwealth v. Millican, 449 Mass. 298, 300 (2007)
("None of the words of a statute is to be regarded as
superfluous" [quotation omitted]); Commonwealth v. Perella, 464
Mass. 274, 280 (2013) ("were we to interpret 'indictment' as
implicitly incorporating 'complaint' in the first, fourth, and
fifth sentences of [G. L. c. 277,] § 63, the two explicit
references to 'complaint' in the second sentence would be
rendered impermissibly superfluous").
The switch from the disjunctive to a combination of the
conjunctive and the disjunctive in the preamble to the
nonexhaustive list4 does not alter our analysis, as it merely
reflects § 174E's consistent equation of "chaining" and
4
As set forth supra, § 174E(f) provides, "No person owning
or keeping a dog shall subject the dog to cruel conditions or
inhumane chaining or the tethering at any time" -- is followed
by a nonexhaustive list of what constitutes "cruel conditions
and inhumane chaining or tethering" (emphasis added).
6
"tethering." See G. L. c. 140, § 174E(a) (twice referring to
"chain or tether"); G. L. c. 140, § 174E(d) ("chained or
tethered"). In effect, then, the Legislature is simply
providing examples of situations that are violative of the
statute as either cruel conditions or inhumane tethering or
chaining, a list that includes examples where dogs are confined
(§ 174E[f][1] and [2]), and examples where they are not
(§ 174E[f][3]).
There is also no merit to the defendant's contention that
her construction is supported by reading the statute as a whole.
In fact, reading § 174E as a whole suggests that subsection (f)
is indeed different from the preceding subsections and that
subsection (e), which sets out an exception "to the above
restrictions on outdoor confinement," is the dividing line
between subsections devoted to outdoor confinement and one
addressed more generally to the conditions in which dogs are
kept.
Nor is the defendant's construction required by prior case
law. General Laws c. 140, § 174E, is relatively new, effective
only since October 31, 2012. In fact, only one published
opinion in the Commonwealth has discussed it. In Commonwealth
v. Duncan, 467 Mass. 746, 752, cert. denied, 135 S. Ct. 224(2014), the Supreme Judicial Court included G. L. c. 140,
§ 174E, in its survey of statutes collectively evincing a
7
"public policy promoting the humane treatment of animals." The
court observed that in enacting G. L. c. 140, § 174E, "the
Legislature took steps to protect dogs in particular, by
prescribing the duration and conditions under which they may be
restrained outside," and noted that the statute requires, among
other things, "that dogs confined outside be provided with clean
water and appropriate shelter." Id. at 751.
The defendant contends that the Supreme Judicial Court's
treatment of the statute in Duncan indicates that it only
applies to those circumstances where a dog is kept exclusively
outside. Indeed, in further discussing the role of G. L.
c. 140, § 174E, in the "legislative framework for preventing
cruelty to animals," the court focused on "the provision
regulating the conditions under which dogs may be kept outside."
Id. at 752.
But Duncan's references to G. L. c. 140, § 174E, "amount[]
to dicta, because the elements of the crime were not at issue in
that case." Rodriguez, 83 Mass. App. Ct. at 271. Moreover,
given that the bulk of G. L. c. 140, § 174E, addresses tethered
dogs and dogs confined outside, we do not take the Duncan
court's focus on that aspect of the section as any indication
that the broader prohibitions contained in subsection (f) are
limited to situations in which dogs are chained outdoors. Even
so, the Duncan court also referenced the statute's authorization
8
of prosecutions against "dog owners" who expose "their dogs to
conditions that 'could injure or kill [them]' in ill-equipped
yards, G. L. c. 140, § 174E(f)(1)." Duncan, 467 Mass. at 752.
The court did not state that the dogs had to be confined to
those yards in order to trigger the statute's protection, nor
would it be sensible to impose such a requirement where the
safety of dogs is imperiled even by an ill-equipped yard to
which they have access but in which they are not confined. The
defendant's conviction here is fully consistent with the court's
citation to subsection (f) and the dangers faced by dogs in
"ill-equipped yards."
We are also unpersuaded by the defendant's argument that
taking the words of the statute at their plain meaning brings
G. L. c. 140, § 174E(f), into conflict with the overlapping
coverage of the animal cruelty statute, G. L. c. 272, § 77,
prohibiting those who have charge or custody of an animal from,
inter alia, inflicting unnecessary cruelty on the animal,
unnecessarily failing to provide the animal with a proper
sanitary environment, wilfully abandoning the animal, or
knowingly and wilfully authorizing or permitting the animal to
be subjected to unnecessary suffering or cruelty of any kind.
There is no merit to the defendant's suggestion that the animal
cruelty statute only regulates conditions for animals confined
indoors, such that § 174E(f) should only apply to dogs confined
9
outdoors. Commonwealth v. Erickson, 74 Mass. App. Ct. 172(2009), on which the defendant relies, in no way indicates that
the animal cruelty statute's scope is so limited, and such a
reading finds no support in the plain language of the broadly
worded statute. Thus, even if we accepted the defendant's
reading of G. L. c. 140, § 174E(f), it would not eliminate her
claimed overlap with the animal cruelty statute, as overlap
would remain with respect to those cases where a confined or
tethered dog is subjected to conditions that would violate both
G. L. c. 140, § 174E(f), and G. L. c. 272, § 77.5
Moreover, no disharmony or inconsistency automatically
arises from overlapping statutory coverage, especially where one
statute establishes a felony and another establishes a
misdemeanor.6 As we noted in Erickson, 74 Mass. App. Ct. at 176,
a "heightened mental state of 'knowing' and 'willful' conduct
was included by the Legislature" in portions of the animal
cruelty statute. Even where the animal cruelty statute requires
only general intent, id. at 176-177, it is directed at
intentional conduct. Cf. Duncan, 467 Mass. at 751 (observing
5
The defendant's theory would also deprive animals other
than dogs who are confined outdoors of the protections of the
animal cruelty statute even though they are ineligible for the
dog-specific protections of G. L. c. 140, § 174E.
6
Neither party has contended that G. L. c. 140, § 174E(f),
establishes only a civil infraction, and the judge treated the
charges as criminal offenses. We do the same.
10
that "[o]ur statutes evince a focus on the prevention of both
intentional and neglectful animal cruelty" and citing G. L.
c. 272, § 77, and G. L. c. 140, § 174E [emphasis added]). In
fact, no mental state is explicitly required under subsection
(f), and offenders are not at risk of imprisonment.7 Cf.
Commonwealth v. Belanger, 30 Mass. App. Ct. 31, 33 (1991) ("When
statutes impose punishment out of considerations of public
policy, lack of knowledge of the law or of the fact that the law
has been violated does not exonerate the person who may have
unwittingly violated the statute. . . . Transgressions of that
sort of statute have been described as 'public welfare' or
'strict liability' offenses").
Suffice it to say that with respect to § 174E, the
Legislature could reasonably decide that it wished to empower
law enforcement officials in some circumstances to intervene on
behalf of dogs in particular without resorting to a felony
prosecution, and a lesser mens rea would be consistent with that
objective. See Commonwealth v. Fitta, 391 Mass. 394, 396-397
7
General Laws c. 140, § 174E(g), provides as follows:
"A person who violates this section shall, for a first
offense, be issued a written warning or punished by a fine
of not more than $50, for a second offense, be punished by
a fine of not more than $100 and for a third or subsequent
offense, be punished by a fine of not more than $300, and
be subject to impoundment of the dog in a local shelter at
the owner's or guardian's expense pending compliance with
this section, or loss of ownership of the dog."
11
(1984) (rejecting defendant's argument that felony "open and
gross lewdness and lascivious behavior" statute impermissibly
overlaps with misdemeanor "indecent exposure" statute because
felony requires proof of element not required for misdemeanor);
Commonwealth v. Kessler, 442 Mass. 770, 774 (2004) (same). This
was essentially the distinction drawn by the judge here in
finding the defendant guilty of G. L. c. 140, § 174E(f), but not
the animal cruelty statute, believing the latter to require
conduct that was "much more egregious than what we've seen
here."8
Viewing the evidence and the permissible inferences to be
drawn therefrom in the light most favorable to the Commonwealth,
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we are
satisfied that the evidence at trial was more than sufficient to
support the judge's finding that the defendant subjected her
dogs to cruel conditions in this case. By the time they were
removed, a neighbor described the dogs as "ravaged" and
"traumatized." They were "incredibly tick-infested"9 and
"matted," and Kenji had contracted Lyme disease and sustained a
soft shoulder injury to his leg that left him limping. Although
8
We express no opinion whether the evidence was sufficient
to support the animal cruelty charges, of which defendant was
acquitted by the judge.
9
The defendant's neighbor testified that in July, 2013, she
picked more than thirty ticks off the dogs and that the ticks
"were the size of [her] fingernails and bigger."
12
the intervention of animal control led to Kenji's diagnosis and
the prescription of antibiotics and pain medication, because the
defendant was unable to administer the medication herself and
had not found anyone to do it for her, Kenji did not receive any
of his prescribed pills. They remained unopened in the
condemned home.
The evidence was more than sufficient to establish that the
dogs were subjected to "dangerous conditions" in violation of
§ 174E(f)(3). Linda Brogden-Burns, Brewster's animal control
officer, testified that the defendant's house was overgrown on
the outside and so cluttered with boxes, books, and clothing on
the inside that it was difficult to walk. A box in the house
had both an open container of old dog food and knives. Brogden-
Burns noted that the yard was overgrown and that there were
metal parts, old lawn equipment, stools, and stacks of chairs by
the back door. There was stagnant water in bowls. Brogden-
Burns was specifically concerned about items in the yard that
posed a danger to the animals, including wires, shovels, and
other items that could fall on or otherwise hurt them.
The judge could have inferred that the condition of the
house did not improve between the condemnation and the removal
of the dogs nearly a year later. Brogden-Burns's observations
of the inside of the house were consistent from her first
inspection in December, 2012, through subsequent visits in
13
March, 2013.10 Although there was testimony that there were
temporary improvements to the yard area, Nancy Ellis-Ice, the
director of Brewster's health department, testified that the
condition of the house was the same in April, 2013, as it had
been when it was condemned the previous August.
In addition, although we do not read the statute as
requiring confinement generally, to the extent that "filthy and
dirty confinement" under § 174E(f)(1) was the specific example
of "cruel conditions" on which the judge focused, there was also
sufficient evidence under Latimore for the judge to infer that,
while the dogs could move in and out of the condemned house by
means of a broken latch on the back door, the dogs were in fact
confined to the defendant's house and fenced-in yard. There was
overwhelming evidence that the area to which the dogs were
confined presented with every factor listed in § 174E(f)(1) as
constituting "filthy and dirty" conditions. Retired Brewster
police Sergeant Steven Freiner testified that, as of April,
2013, there was a large amount of debris and trash inside and
outside the house as well as a foul smell of trash coming from
inside the house. Allen Borgal, a lieutenant with the Animal
Rescue League of Boston and director of the Center for Animal
10
Brogden-Burns documented her December, 2012, inspection
and follow-up visits in April and July, 2013, with photographs
that were admitted in evidence. At least some of these
photographs were transmitted to this court and considered in the
resolution of this appeal.
14
Protection, reported that the yard was overgrown, that no dog
feces had been picked up, and that the yard consequently smelled
like dog feces when he visited the property in July, 2013.
Brogden-Burns noted the generally filthy and dirty conditions in
the yard. In addition, Zach's and Kenji's emotional health was
further compromised by being left alone virtually all day every
day.
Judgments affirmed.