State of Tennessee v. Jessica Hartle Lumpkins ( 2022 )

09/21/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 9, 2022 Session
STATE OF TENNESSEE v. JESSICA HARTLE LUMPKINS
Appeal from the Criminal Court for Davidson County
No. 2020-C-1664 Montee Watkins, Judge
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No. M2021-01144-CCA-R3-CD
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The State of Tennessee appeals the trial court’s dismissal of two counts of animal cruelty
on the basis that an emu met the statutory definition of livestock under Tennessee Code
Annotated section 39-14-201, that the animal control officer was not a statutorily qualified
livestock examiner and that the animal control officer’s consultation with a licensed
veterinarian failed to satisfy the requirements of the livestock examination statute. See
T.C.A. § 39-14-211. We conclude that the emu was not livestock under the plain language
of the statute and thus no livestock examination was required to proceed with charges under
the animal cruelty statute. See T.C.A. § 39-14-202(2). Accordingly, we reverse the trial
court’s dismissal of counts one and two and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and JOHN W. CAMPBELL, SR., JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; Elaine Cuthbertson, Assistant
District Attorney General, for the appellant, State of Tennessee.
Bernard F. McEvoy, (at trial and on appeal) Nashville, Tennessee, for the appellant, Jessica
Hartle Lumpkins.
C.E. Hunter Brush and Y. Larry Cheng, Nashville, Tennessee, and Julie P. Bowling,
Columbia, Tennessee for the amicus curiae, Tennessee Farm Bureau Federation and the
Farm Animal Care Coalition of Tennessee.
OPINION
Facts and Procedural History
At issue in this case is the application of the livestock examination statute in charges
of cruelty to animals. On September 16, 2020, the Davidson County Grand Jury indicted
Defendant on three counts of animal cruelty in violation of Tennessee Code Annotated
section 39-14-202, alleging that Defendant “did fail unreasonably to provide necessary
food, water, care or shelter for animals in [her] custody” on three separate dates, March 19,
2019 (count one), November 5, 2019 (count two), and November 13, 2019 (count three).
Defendant was a teacher and the director of the agriculture department at McGavock High
School1 in Nashville.
Defendant filed a pretrial motion to exclude testimony from the animal control
officer who examined the animals on the three dates alleged in the indictment, arguing that
his testimony should be excluded because he was not a qualified livestock examiner under
Tennessee Code Annotated section 39-14-211. At the evidentiary hearing, Cory Wells
testified that he was the lead field officer for Metro Animal Care and Control (“Animal
Control”). Mr. Wells’ highest level of education was a high school degree, and he also
possessed a certification for animal control officers. After receiving multiple complaints
from McGavock High School (“McGavock”) students and their families, Officer Wells
first went to McGavock on February 23, 2019, to investigate. He met Defendant, and she
showed him the area where animals were housed in the agriculture department. He
observed a dog, rabbits, guinea pigs, ferrets, cats and gerbils. Officers Wells was
concerned about the cleanliness of some of the animal cages and some animals’ lack of
access to water. Defendant admitted to Officer Wells that multiple animals had died in her
care.
Officer Wells conducted a follow-up visit on February 28, 2019, when he also met
with Principal Robbin Wall to observe where animals were housed in the McGavock
agriculture department. During that visit, Officer Wells observed eleven chickens inside
the small animal room without water and noted that the general conditions were the same
as they were on his first visit.
Officer Wells returned to the McGavock agriculture department again on March 19,
2019, a few days after receiving a complaint from a school security officer. At that
inspection, Officer Wells said he observed both “livestock and companion animals” and
noticed that multiple rabbits did not have access to food or water. Before and after that
visit, Officer Wells communicated by telephone and email with Dr. Elise Jones-Williams,
1
The agriculture department at McGavock High School is referred to in the record as the agriculture
department, the animal science program, and the agriculture tech program. For consistency, we will refer
to it as the McGavock agriculture department.
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a large-animal veterinarian licensed in Tennessee, with whom Officer Wells often
consulted when investigating a case involving livestock. He took twenty to thirty
photographs of all of the animals on the property and sent them to Dr. Jones-Williams. He
recalled sending Dr. Jones-Williams pictures of an emu named Charley who had been
gifted to the school as a pet from a private owner. Dr. Jones-Williams testified that from
the photographs received from this visit, she observed Charley to be severely underweight.
Officers Wells visited the McGavock agriculture department again on November 5,
2012. He again observed and took photographs of both “companion animals and livestock
animals.” During that inspection, he noted that “the rabbits were in cages filled with feces
and urine.” He also observed a cat on several occasions, but the “cat wasn’t an issue
through the whole thing.” He photographed all of the animals and sent the photographs to
Dr. Jones-Williams for examination. Dr. Jones-Williams again testified that Charley the
emu, was underweight, and she agreed to visit the emu in person which she did on
November 13, 2019.
Following the trial court’s question to Officer Wells about the agency protocol,
Officer Wells responded as follows:
[Defendant] received multiple notices “starting in February all the way
through the last date of inspection on November the 13th. Every time I went
out there, there was issues. I would address those issues. I would go over it
with her. I would hand-write them out on the notice. I also e-mailed a copy
of the concerns from Dr. Jones[-Williams] to Mr. Wall and [Defendant].
There – on many – on every occasion, [Defendant] received guidance on
what needed to be corrected.
At the November 13 visit, Dr. Jones-Williams was accompanied by Officer Wells
and Lauren Bluestone, the Director of Animal Control. Dr. Jones-Williams performed a
“visual cursory exam” of all of the animals which inspection revealed unsanitary conditions
in the rabbit and chicken cages. Both Officers Wells and Dr. Jones-Williams noted that
the rabbit cages were filthy and overflowing with urine which was flowing into the chicken
cages underneath, “the same urine stain that was there on [Officer Wells’] previous visit
from November the 5th.” Dr. Jones-Williams also noted in her report that the chickens and
ducks appeared to be deprived of water, and the goats were malnourished. The hay was
not properly stored, and barn stalls were open. The initial subject of the inspection,
Charley, was not present on November 13, and Defendant admitted that Charley had died.
Officer Wells later learned that “[Defendant] and some students bagged the emu up and
tossed it in the dumpster back behind the school,” which was “absolutely not” an
appropriate method of disposing of the emu’s remains. After the November 13 inspection,
Dr. Jones-Williams emailed a written report of her findings to Animal Control. Based on
that report, the three-count indictment followed.
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Following the evidentiary hearing on August 4, 2021, the trial court entered a
written order granting Defendant’s motion to dismiss counts one and two of the indictment,
finding that both counts related to livestock, specifically chickens and an emu; that under
the plain language of the livestock examination statute, Officer Wells did not meet the
qualifications to examine the livestock; and that there was no exception under the statute
to allow for “telehealth” in the examination of livestock. The trial court found that while
the emu had formerly been a pet or a companion emu, its status changed to livestock when
it was donated to the McGavock agriculture department.
On October 14, 2021, the State filed a notice of appeal from the partial dismissal of
the indictment, and this Court waived the requirement for timely filing of the notice.
Analysis
When reviewing issues of statutory construction, we conduct a de novo review of
the trial court’s rulings with no presumption of correctness. State v. Deberry, -- S.W.3d --
, No. W2019-01666-SC-R11-CD, 2022 WL 3725314, at *2 (Tenn. Aug. 30, 2022); State
v. Welch, 595 S.W.3d 615, 621 (Tenn. 2020); State v. Tolle, 591 S.W.3d 539, 543 (Tenn.
2019). The court’s role in interpreting a statute is to carry out legislative intent without
broadening or restricting the statute beyond its intended scope. Welch, 595 S.W.3d at 621;
State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016). Legislative intent is found in the
plain and ordinary meaning of the statute. Deberry, -- S.W.3d --, No. W2019-01666-SC-
R11-CD, 2022 WL 3725314, at *3 (Tenn. Aug. 30, 2022) (“We give the words of a statute
their ‘natural and ordinary meaning in the context in which they appear and in light of the
statute’s general purpose’”) (citation omitted); State v. L.W., 350 S.W.3d 911, 916 (Tenn.
2011). Thus, “courts are to give effect to the ordinary meaning of the words used in the
statute and presume that each word used was purposely chosen by the legislature to convey
a specific meaning.” State v. Marise, 197 S.W.3d 762, 766 (Tenn. 2006). “When statutory
language is clear and unambiguous, we must apply its plain meaning in its normal and
accepted use, without a forced interpretation that would extend the meaning of the
language[.]” See Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009) (citation omitted).
There are several well-established principles regarding statutory construction.
When interpreting statutes, “the court must (1) give the words of the statute their natural
and ordinary meaning, (2) consider the words in the context of the entire statute, and (3)
presume that the General Assembly intended for each word to be given its full effect.”
State v. Michael Broyles, No. E2019-01033-CCA-R3-CD, 2021 WL 2156935, at *14
(Tenn. Crim. App. May 27, 2021), perm. appeal denied (Tenn. Oct. 13, 2021). Courts
must “resolve any possible conflict between statutes to provide for a harmonious operation
of the laws.” Frazier v. State, 558 S.W.3d 145, 153 (Tenn. 2018). “Statutes that relate to
the same subject matter or have a common purpose must be read in pari materia so as to
give the intended effect to both.” Nunley v. State, 552 S.W.3d 800, 825 (Tenn. 2018)
(quoting In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015). A more specific statutory
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provision takes precedence over a more general provision. Frazier, 558 S.W.3d at 153.
And “where the legislature includes particular language in one section of a statute but omits
it in another section of the same act, it is generally presumed that the legislature acted
purposefully in the subject included or excluded.” Welch, 595 S.W.3d at 623 (quoting
State v. Loden, 920 S.W.2d 261, 265 (Tenn. Crim. App. 1995)). “Where different sections
are apparently in conflict we must harmonize them, if practicable, and lean in favor of a
construction which will render every word operative.” See Bible & Godwin Const. Co. v.
Faener Corp., 504 S.W.2d 370, 371 (Tenn. 1974). Furthermore, courts must also presume
that the legislature is aware of its prior enactments and decisions of the courts when
enacting legislation. See Carter, 279 S.W.3d at 564. “We reiterate, moreover, that when
the plain meaning of a statute is clear after application of the traditional tools of statutory
interpretation, a court should not ‘delve into the legislative history of an unambiguous
statute.’” Deberry, 2022 WL 3725314, at *7 (quoting Welch, 595 S.W.3d at 624).
In this case, Defendant was charged with three counts of animal cruelty. Tennessee
Code Annotated section 39-14-202 provides, “A person commits an offense who
intentionally or knowingly . . . [f]ails unreasonably to provide necessary food, water, care
or shelter for an animal in the person’s custody[.]” The livestock examination statute
provides as follows:
(a) No entry onto the property of another, arrest, interference with usual and
customary agricultural or veterinary practices, confiscation, or any other action
authorized by this part or any other law shall be taken in response to an allegation
that this part has been violated with regard to livestock unless, prior to or at the
time of such action:
(1) The livestock in question has been examined by:
(A)The commissioner of agriculture or the commissioner’s duly authorized
agent trained to conduct livestock cruelty examinations;
(B)A graduate of an accredited college of veterinary medicine specializing
in livestock practice; or
(C)A graduate of an accredited college of agriculture with a specialty in
livestock; and
(2) Upon examination of the livestock, the commissioner, commissioner’s agent,
or graduate has probable cause to believe that a violation of this part has
occurred with regard to the livestock.
(b) If a person authorized by this section to make a probable cause examination of
livestock does not examine the livestock within twenty-four (24) hours of
receiving the allegation, a licensed veterinarian may make the inspection, and
the veterinarian’s findings shall be afforded the same presumption and effect as
an examination conducted by a person authorized pursuant to subsection (a).
T.C.A. § 39-14-211.
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The application of the livestock examination statute first requires us to determine if
the animal or animals which are the subject of the indicted charges are in fact livestock as
defined in the statutory scheme. Tennessee Code Annotated section 39-14-201 provides
as follows:
As used in this part, unless the context otherwise requires:
(1) “Animal” means a domesticated living creature or a wild creature
previously captured:
(2) “Livestock” means all equine as well as animals which are being
raised primarily for use as food or fiber for human utilization or consumption
including, but not limited to, cattle, sheep, swine, goats, and poultry;
(3) “Non-livestock animal” means a pet normally maintained in or near
the household or households of its owner or owners, other domesticated
animal, previously captured wildlife, an exotic animal, or any other pet,
including, but not limited to, pet rabbits, a pet chick, duck, or pot bellied pig
that is not classified as “livestock” pursuant to this part.
The three-count indictment in this case does not specifically state which animals are
the subject of the alleged cruelty in each count. The indictments do, however, specify a
particular date for each allegation. Defendant is charged with intentionally or knowingly
failing to unreasonably provide necessary food, water, care or shelter for animals in
Defendant’s custody on March 19, 2019 (count one); on November 5, 2019 (count two),
and on November 13, 2019 (count three).
Officer Wells visited Defendant and inspected the McGavock agriculture
department a total of five times. No charges were brought from the first two visits. Officer
Wells testified that on each visit, he took “well over twenty or thirty “ photographs of “[a]ll
of the animals on the property, which included rabbits, guinea pigs, gerbils, chickens, a
ferret, a cat, goats, emus, a sheep at one point, ducks,” and sent them to Dr. Jones-Williams.
Officer Wells noticed rabbits, guinea pigs, ferrets, cats and gerbils, which he considered
companion animals, without water and in cages “overflowing with feces and urine build-
up.” On his second visit to the McGavock Animal Science program area on February 28,
2019, Officer Wells said that “[o]verall, it was in the same condition as before.”
Specific to March 19, 2019, as referenced in count one of the indictment, Officer
Wells testified that he observed what he considered companion animals and livestock. He
was concerned specifically about rabbits and Charley, the emu. He sent Dr. Jones-
Williams pictures of Charley. Dr. Jones-Williams testified that from the photographs, she
observed Charley to be severely underweight.
Count two of the indictment stems from Officers Wells’ visit to McGavock on
November 5, 2019. Officer Wells testified that he again observed companion animals and
livestock animals during that inspection. The rabbits he observed did not have access to
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food or water and were in cages filled with feces and urine. There was a cat on the property,
but Officer Wells did not have any concerns about the cat. After Dr. Jones-Williams
received photographs from Officer Wells’ November 5 visit, specifically one of the
photographs of Charley, she was concerned that Charley was underweight, and thus she
agreed to visit the emu in person which she did on November 13, 2019.
At the November 13 visit which is the date of the allegations in count three of the
indictment, Dr. Jones-Williams was accompanied by Officer Wells and Lauren Bluestone,
the Director of Animal Control. Officer Wells testified that he observed chickens and
rabbits in unsanitary conditions. Both Officer Wells and Dr. Jones-Williams noted that the
rabbit cages were filthy and overflowing with urine which was flowing into the chicken
cages underneath, “the same urine stain that was there on [Officer Wells’] previous visit
from November the 5th.” Dr. Jones-Williams also noted in her report that the chickens and
ducks appeared to be deprived of water and the goats were malnourished. The hay was not
properly stored and barn stalls were open. The initial subject of the inspection, Charley,
was not present on November 13, and Defendant admitted that Charley had died. Officer
Wells later learned that “[Defendant] and some students bagged the emu up and tossed it
in the dumpster back behind the school,” which was “absolutely not” an appropriate
method of disposing of the emu’s remains. After the November 13 inspection, Dr. Jones-
Williams emailed a written report of her findings to Animal Control. Based on that report,
the three-count indictment followed.
Count three was not the subject of Defendant’s motion to dismiss because
Defendant concedes that Dr. Jones-Williams was present on November 13 when she
examined the animals in question and that Dr. Jones-Williams is a duly qualified livestock
examiner under the statute in question. Defendant further concedes that her motion to
dismiss count one and count two applies only to livestock and not to any companion
animals that may be the subject of those two counts.
The testimony in the record regarding count one of the indictment charging
Defendant with animal cruelty on March 19, 2010, relates to rabbits and Charley the emu.
The testimony in the record regarding count two of the indictment charging Defendant with
animal cruelty on November 5, 2019, relates to rabbits, chickens and Charley the emu. The
trial court found that while the emu had formerly been a pet or a companion emu, its status
changed to livestock when it was donated to the McGavock agriculture department. The
trial court further found that Officer Wells was not a qualified livestock examiner and
dismissed count one and count two for failure to comply with the livestock examination
statute. The trial court did not address count one and count two as related to the rabbits;
however, we have included rabbits in our application of the statute to the dismissed
indictments.
The statutory definition of livestock includes “all equine.” The definition further
includes “animals which are being raised primarily for use as food or fiber for human
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utilization or consumption including, but not limited to, cattle, sheep, swine, goats, and
poultry.” We will first address whether Charley the emu meets the statutory definition of
“livestock” under the statute. Charley had originally been a family pet who was donated
to the McGavock agriculture department. Defendant argues that an emu is poultry which
is included in the statutory definition of livestock. The term poultry is not defined in the
statutory scheme. However, the statute is clear that “all equine” are livestock, but not all
poultry are livestock. The test to determine whether other animals such as poultry are
“livestock” as defined in the statute is based on the primary use and purpose of the animal.
While there was no specific testimony about the purpose of the McGavock agriculture
department, Dr. Jones-Williams’ report describes the area she inspected as a lab area and
a barn with cages, stalls and a pen. Clearly, as part of a high school education program, the
animals were being used for educational purposes. There is no proof in the record that the
emu was being raised “primarily for use as food or fiber for human utilization or
consumption.” The statutory definition of livestock is not ambiguous, and under the plain
language of the livestock examination statute, Charley the emu is not livestock.
Even if the definition of “livestock” under the statute were to be considered
ambiguous, we can look to the plain language of the definition of “non-livestock animal”
for clarity. “Non-livestock animal means a pet normally maintained in or near the
household or households of its owner or owners, other domesticated animal, previously
captured wildlife, an exotic animal, or any other pet, including, but not limited to, pet
rabbits, a pet chick, duck, or pot bellied pig that is not classified as ‘livestock’ pursuant to
this part.” T.C.A. § 39-14-201(3). This definition of “non-livestock” clearly supports the
determination of whether an animal is livestock based on the primary use and purpose of
the animal because “non-livestock” animals can include chicks and pigs, animals that could
otherwise be considered livestock, based upon their use and purpose.
Applying the plain language of the definition of livestock in the livestock
examination statute, Charley the emu is not livestock. Rabbits are clearly “non-livestock
animals” under the statutory definition as there was no proof in the record that they were
used for food or fiber under the primary purpose test. Accordingly, the trial court erred in
its dismissal of counts one and two based on its determination that the animals observed
on March 19, 2019 (count one) and on November 5, 2019 (count two) were livestock and
subject to the specific examination requirements set forth in Tennessee Code Annotated
section 39-14-201.
Having determined that the animals under Defendant’s care and custody as a part of
the McGavock agriculture department on November 5, 2019 and on November 13, 2019,
do not meet the statutory definition of “livestock” under the livestock examination statute,
it is unnecessary for us to further analyze the livestock examination statute with regard to
the type of examination required under the statute.
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Conclusion
For the foregoing reasons, the trial court’s dismissal of count one and count two of
the indictment was in error and is accordingly reversed. Count one and count two of the
indictment are reinstated.
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JILL BARTEE AYERS, JUDGE
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