People v. Kirkpatrick

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Appellate Court Date: 2020.06.21
13:49:22 -05'00'
People v. Kirkpatrick, 2020 IL App (5th) 160422Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ELISA KIRKPATRICK, Defendant-Appellant.
District & No. Fifth District
No. 5-16-0422
Filed April 10, 2020
Rehearing denied June 5, 2020
Decision Under Appeal from the Circuit Court of Williamson County, No. 15-CF-304;
Review the Hon. Brian D. Lewis, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Counsel on James E. Chadd, Ellen J. Curry, and Lawrence J. O’Neill, of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
Brandon Zanotti, State’s Attorney, of Marion (Patrick Delfino, Patrick
D. Daly, and Sharon Shanahan, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE OVERSTREET delivered the judgment of the court, with
opinion.
Justice Boie concurred in the judgment and opinion.
Justice Cates concurred in part and dissented in part, with opinion.
OPINION
¶1 Following a bench trial in the circuit court of Williamson County, the defendant, Elisa
Kirkpatrick, was found guilty on four counts of practicing veterinarian medicine without a
valid license, six counts of violating an animal owner’s duties, and one count of aggravated
cruelty to a companion animal. On appeal, the defendant maintains that her convictions on the
seven latter counts should be reversed due to insufficient evidence. For the reasons that follow,
we reverse the defendant’s conviction for aggravated cruelty to a companion animal and affirm
her convictions on the remaining counts.
¶2 BACKGROUND
¶3 In June 2015, the State filed an information charging the defendant with numerous
violations of the Humane Care for Animals Act (510 ILCS 70/1 et seq. (West 2014)) and the
Veterinary Medicine and Surgery Practice Act of 2004 (225 ILCS 115/1 et seq. (West 2014)).
In May 2016, the State filed an amended information alleging 12 specific counts. Count I
charged the defendant with aggravated cruelty to a companion animal (510 ILCS 70/3.02
(West 2014)), counts II-VI charged her with practicing veterinarian medicine without a valid
license (225 ILCS 115/5 (West 2014)), and counts VII-XII charged her with violating an
animal owner’s duties (510 ILCS 70/3 (West 2014)). Counts I through III pertained to a dog
named “Chief,” counts IV and V pertained to a dog named “Max,” count VI pertained to a cat
named “Tom,” count VII pertained to a dog named “Shane,” and counts VIII through XII
pertained to several “caged” dogs that were physically described but not named. Count I
specifically alleged that the defendant committed the offense of aggravated cruelty to a
companion animal by intentionally performing a surgical operation on Chief “in an unsterile
manner at her private residence, thereby committing an act that caused the companion animal’s
death.” Count VII specifically alleged that the defendant “knowingly failed to provide
veterinarian care as needed to prevent the suffering of ‘Shane,’ a dog that due to a serious
infection, chewed its leg off, exposing its flesh and bone.” In July 2016, the cause proceeded
to a three-day bench trial where the following evidence was adduced.
¶4 In 1993, the defendant received a doctorate degree in veterinary medicine from the
University of Illinois and was issued a license to practice veterinary medicine by the Illinois
Department of Financial and Professional Regulation. The defendant subsequently worked as
a licensed veterinarian in the Carbondale-Marion area until January 31, 2011, when her license
expired, apparently due to her inadvertent failure to renew it. After January 31, 2011, and
before her license was reinstated in December 2011, the defendant continued to practice
veterinary medicine from her clinic in Carbondale. As a result, in December 2014, the
defendant’s license was suspended, and she was ordered to pay a $10,000 fine. At trial, the
defendant acknowledged that, despite the suspension of her license and her closure of her
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clinic, she had continued to practice veterinary medicine by working out of her home in rural
Creal Springs and providing pickup/drop-off service for her customers.
¶5 In January 2015, the defendant’s father passed away from lung cancer. The defendant did
not work for several months preceding her father’s death, and she eventually fell behind on her
bills. By mid-May 2015, the electrical service to the defendant’s home had been disconnected,
and her mortgage lender had commenced foreclosure proceedings against her.
¶6 On Wednesday, May 20, 2015, after performing a routine castration on Max, the defendant
returned him to his owner, Robert Marlow, with instructions to keep an Elizabethan collar on
Max’s head to prevent him from biting his surgical wound. Prior to castrating Max, the
defendant had been his veterinarian for several years, and she had also treated Marlow’s other
pets.
¶7 On Thursday, May 21, 2015, the defendant collected Chief from his owner, Jason Snoddy.
Snoddy advised the defendant that Chief had recently been sick and that a veterinarian in
Missouri had advised that Chief had a potentially cancerous tumor on an undescended testicle
that needed to be removed. Because the defendant had been Chief’s veterinarian since the dog’s
birth in 2008, Snoddy asked her to perform the surgical procedure, and she agreed to do so.
The defendant advised Snoddy that the surgery would be risky given Chief’s condition and
prior health problems.
¶8 On the afternoon of Friday, May 22, 2015, after removing Chief’s tumor, the defendant
called Snoddy and reported that Chief had survived the operation and was stable and awake.
The defendant advised that she wanted to observe Chief overnight and would return him home
the next day.
¶9 Several hours later, Marlow called the defendant and advised her that Max had been biting
and scratching his surgical wound after destroying the Elizabethan collar that he was supposed
to be wearing. The defendant agreed to pick up Max for follow-up care, and when she did so,
she saw that he had chewed out all of his sutures. After collecting Max, the defendant ran some
errands before returning home later that night.
¶ 10 Meanwhile, a process server, who had been to the defendant’s house while she was away,
called the Williamson County Sheriff’s Department and reported that a strong odor of death
was emanating from the home and that no one was answering the door. The server further
reported that there were dogs barking inside.
¶ 11 When officers with the sheriff’s department and the Williamson County animal control
department subsequently went to the defendant’s house to conduct a welfare check, they
looked through the windows and discovered an “animal hoarding” situation. They also saw
that the electricity to the residence had been “locked off” by the power company. Plastic
garbage bags containing trash and animal feces were visible in the front yard, on the home’s
wrap-around porch, and in the bed of a pickup truck that was parked in the driveway. A search
warrant for the house was soon obtained, and the Williamson County fire protection district
was ordered to assemble a team and report to the scene with hazardous-materials suits and
lighting.
¶ 12 When the authorities subsequently entered the defendant’s house to investigate, they saw
that the conditions inside were deplorable. Dozens of animals were found in the home, and
large areas of the floors were covered in layered animal feces. The animals in the home
included a cockatoo, an opossum, a pot-bellied pig that was running loose in the basement, and
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a feral bobcat that was being kept in a bedroom. Numerous cats in stacked rusty cages were
found in the kitchen, and numerous dogs in like cages were found in the basement. Scores of
bagged, decomposing animal carcasses, most of which were inside or atop of deep freezers,
were also found in the basement. Additional dogs living in pens were found in a barn behind
the house, along with three donkeys, a rooster, a rabbit, and a cow.
¶ 13 On and around the island counter in the defendant’s kitchen, medical supplies including
syringes, isoflurane, rubber gloves, and scalpels were discovered. Chief was found lying in a
crate on the kitchen floor in “obvious distress,” and Shane was found in another crate nearby.
Shane’s left hind paw was missing, the metatarsals of his left hind leg were significantly
protruding, and the lower part of the leg surrounding the bones was predominantly skinless.
One of the cats caged in the kitchen was Tom.
¶ 14 At approximately 10:30 p.m., while the live animals were being removed from the
defendant’s house, the defendant returned home with Max. After relinquishing custody of Max,
the defendant agreed to proceed to the Williamson County Sheriff’s Department, where she
was interviewed by Captain Brian Thomas. When later advised of the situation at the
defendant’s house, Marlow arrived at the scene and took possession of Max, and Snoddy
arrived and took possession of Chief.
¶ 15 The defendant’s interview with Captain Thomas commenced shortly before midnight and
lasted about an hour. During the course of the interview, the defendant advised Thomas that
other than Max, Chief, and Tom, all of the animals found in her home were either her pets or
animals that she had accepted from local rescue shelters. The defendant indicated that most of
the cats and dogs were going to be euthanized had she not adopted them. Stating that she loved
her animals, the defendant repeatedly asked Thomas whether she would be able to get them
back. In response, Thomas advised the defendant that her obvious love of animals had become
a problem because she had “become a hoarder.” He further advised the defendant that, at the
very least, she would have to clean up her house and have the power restored before regaining
possession of the animals would even be a possibility.
¶ 16 The defendant acknowledged that she had been practicing veterinary medicine from her
home without a license and that her clients were unaware that her license had been suspended.
She explained that, paradoxically, she had been providing unlicensed veterinary services
because she needed to earn money to get her license back. She further explained that keeping
all her animals fed was costly.
¶ 17 The defendant advised Thomas that she had recently operated on Max and Chief on the
island counter in her kitchen after sterilizing the counter beforehand. The defendant
acknowledged, however, that the feces-laden environment in her home was not healthy and
was not an acceptable environment in which to perform surgical procedures. She further
acknowledged that she would be upset if someone performed surgery on one of her pets in
such an environment.
¶ 18 With respect to Shane, the defendant explained that he had lost his left hind foot from
pressure necrosis after recently getting it caught in his cage. The defendant stated that she had
been treating the injury but that Shane had eaten the bandages she had applied. The defendant
explained that Shane had started chewing on the leg after the paw had gotten “leathery” and
died. The defendant acknowledged that what remained of the leg needed to be amputated.
¶ 19 With respect to the animal carcasses found in her basement, the defendant indicated that
she had been keeping most of them frozen in her deep freezers for years. She further indicated
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that the carcasses were those of animals that she had previously owned and that some were 10
years old. The defendant explained that she wanted to have the carcasses cremated so that she
could keep the ashes, but she had been unable to save up the money to do so. She further
explained that, after the electricity to her house was disconnected, she had considered digging
a mass grave on her property so she could bury them there.
¶ 20 The defendant acknowledged that her house was a “disaster” and that the way she was
living was not “normal.” She insisted, however, that the animals she kept were happy, healthy,
and well cared for. Stating that she was not crazy, the defendant explained that she was simply
overwhelmed. She further explained that the “vicious cycle” she found herself in had
negatively spiraled when her father became ill and then worsened when she lost her electricity.
The defendant stated that she had been attempting to “patch up one hole at a time” and had
only recently lost control of the situation. The defendant advised Thomas that she was
ashamed, worried, and “stressed out of [her] head.”
¶ 21 On the morning of Saturday, May 23, 2015, Shane was taken to Dr. Gordon Rhine’s animal
hospital in Herrin, and Chief was taken to Dr. Allen Hodapp’s veterinary clinic in Marion. Max
was taken to a veterinary hospital in Carbondale, where he received treatment for an infection
at his incision site and was subsequently released.
¶ 22 At trial, Rhine testified that what remained of Shane’s left hind leg required amputation
and was something that needed to be addressed “pretty soon.” Identifying photographs
showing the condition of Shane’s leg when the dog was removed from the defendant’s home,
Rhine described Shane’s leg wound as a large, granulating wound that extended mid-tibia
across the hock. Noting that the metatarsals of the leg were clearly “sticking out,” Rhine opined
that Shane had apparently sustained a left paw injury that had become severely infected and
that the dog had instinctively chewed its foot off as a result. Rhine explained that when a paw
becomes infected, a dog will “actually chew it off” and not know “where to stop.” Rhine
indicated that Shane had “already partially” amputated the left hind leg and that the procedure
needed to be “completed.” Rhine stated that treating Shane’s initial injury with antibiotics,
bandaging, and an Elizabethan collar would have prevented it from becoming worse. Rhine
testified that Shane had “obviously already been licking the wound for a while.”
¶ 23 When presented with photographs depicting the unsanitary conditions inside the
defendant’s home, Rhine testified that clean conditions were essential to proper veterinary
care. Rhine explained that “if something’s not clean, it’s going to have bacteria[, and] [t]hat
bacteria is going to lead to infection, and infection is going to cause all kinds of problems.”
Rhine further explained that “fecal matter inherently has bacteria in it” and that exposing an
open wound to fecal matter is “just asking for trouble.” Rhine testified that decomposing
animal carcasses are also fraught with bacteria. Rhine opined that housing live animals near
decomposing animal carcasses would be unhealthy and inhumane.
¶ 24 Hodapp testified that, when he saw Chief in May 2015, Chief was dehydrated, lethargic,
and minimally responsive. Hodapp testified that Chief’s history, blood tests, and physical
examination indicated that the dog was suffering from peritonitis secondary to surgical
contamination. Hodapp explained that peritonitis is an infection of the abdominal cavity caused
by a contaminant’s direct entry into the abdomen and that, in a surgical setting, contamination
can result from inadequate preparation or poor sterilization techniques. Hodapp indicated that,
given the condition of the defendant’s home, her kitchen’s island counter was not a proper
place to perform an operation. Hodapp also noted that Chief’s abdomen had not been shaved
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prior to the operation, which increased the risk that the dog might contract a surgical-site
infection.
¶ 25 Hodapp testified that he had advised Snoddy that Chief’s prognosis was grave. Hodapp
recommended that Chief be aggressively treated with intravenous fluids and antibiotics, but
further treatment and diagnostics were declined. Chief died at home less than 24 hours later,
and Hodapp opined that peritonitis was the cause of death. Hodapp acknowledged that his
opinion had not been confirmed by a paracentesis procedure or a necropsy.
¶ 26 For the defense, Dr. Jeffrey Parton testified that he had reviewed Chief’s medical records
at the defendant’s request. Parton stated that Chief had a history of untreated heartworms and
been experiencing premortem breathing problems. Parton opined that the testicular tumor that
the defendant removed from Chief was most likely cancerous and that Chief was in poor
condition going into the surgery. Parton disagreed with Hodapp’s conclusion that Chief died
from peritonitis, stating that additional blood tests should have been conducted. Parton testified
that a paracentesis procedure or a necropsy should have been also performed to confirm the
presence of peritonitis. Parton further opined that, even if Chief had contracted a bacterial
infection from the surgery, it was highly unlikely that the infection would have proven fatal in
less than 24 hours. Parton acknowledged, however, that it would have been difficult for a dog
in Chief’s condition to survive a serious infection for very long. Parton further acknowledged
that he knew nothing of the conditions under which Chief’s operation had been performed.
¶ 27 Erin Cupp testified that the defendant had been her veterinarian since 2005. Cupp described
the defendant as an extremely dedicated veterinarian who genuinely loved animals and was
always willing to provide them “around-the-clock care.” Cupp testified that despite the
conditions that existed in the defendant’s home in May 2015, she would still have allowed the
defendant to treat her pets.
¶ 28 Tom’s owner, Paula Most, testified that the defendant had been her veterinarian for nearly
20 years. Most’s opinions of the defendant were similar to Cupp’s, and Most recalled an
occasion when the defendant picked up one of her sick pets during an ice storm when the road
conditions were “horrible.” Most further recalled that the defendant had once euthanized one
of Most’s cats on a Sunday so that the animal would not have to suffer until the defendant’s
clinic opened on Monday. Most indicated that, despite the conditions in which Tom had been
found, she would still allow the defendant to treat her pets.
¶ 29 Diane Russell also testified that the defendant had been her veterinarian for nearly 20 years.
Russell testified that the defendant was a compassionate veterinarian who had treated her pets
in several emergency situations. Referencing the defendant’s willingness to take in animals
that had been abandoned by their owners, Russell explained that the defendant “could never
turn down a dog that needed help” and that the defendant’s heart was “too big when it comes
to animals.” Russell indicated that, as a result, the defendant had ultimately assumed
responsibility for more animals than she could handle. Russell further indicated that, despite
what occurred at the defendant’s house in May 2015, she would still use the defendant as her
veterinarian.
¶ 30 Theresa Keith testified that she was a certified medical technologist and had worked as a
veterinarian technician at the defendant’s clinic in Carbondale from 2000 through 2005. Keith
testified that, out of all the veterinarians she had ever known, the defendant was the most
caring. Keith testified that the defendant “would go the extra mile” when treating an animal
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and often provided services pro bono. Keith further testified that, if an animal were in critical
condition, the defendant would keep it with her at all times.
¶ 31 Stacey Ballard testified that she worked for the Illinois Department of Agriculture as an
animal and animal products investigator and had formerly managed animal shelters for the
Humane Society in southern Illinois and southeast Missouri. Ballard testified that she had
known the defendant since 1998 and had been to the defendant’s clinic many times. Ballard
testified that the defendant was a dedicated veterinarian who would “go to extreme[s]” for the
animals she treated. Ballard further indicated that, when she managed the Humane Society’s
animal shelter in Jackson County, the defendant had provided free services for the animals and
had adopted several animals herself.
¶ 32 Ballard acknowledged that keeping live pets near decomposing animal carcasses would be
unhealthy for the pets. She further acknowledged that she would generally consider a dog
found in Shane’s condition to be a dog who had been deprived of humane treatment. Ballard
suggested that in May 2015 the defendant “had a lot on her plate” both personally and
professionally. Ballard testified that she had recused herself from participating in the
investigation that occurred at the defendant’s house on May 22, 2015, in light of the numerous
professional interactions that the two had previously had.
¶ 33 The defendant testified that her financial and personal problems began after her father was
diagnosed with lung cancer in the fall of 2014. The defendant testified that, prior to the “raid”
on her home, she had been trying to get her situation “under control” and had been without
electricity for about two weeks. The defendant indicated that her loss of electricity had made
things significantly worse and that coyotes approaching the house at night had become a
resulting problem.
¶ 34 The defendant testified that all of the animals found at her house had been provided with
proper food and medical care. The defendant indicated that all of the animals had names and
that she had adopted most of them because they were going to be euthanized at local shelters.
The defendant explained that her indoor animals had taken turns being out of their cages
because it would have been dangerous to “let them all run loose at the same time.” The
defendant explained that it cost $50 a day to feed the animals and that she spent approximately
four hours a day cleaning their cages. The defendant indicated that she had been lining the
cages with paper towels and throwing the bagged refuse in her yard. The defendant further
indicated that the bobcat found in the bedroom was a “temporary situation” and that she had
taken the animal in after finding it “near death.”
¶ 35 With respect to the animal carcasses found in her basement, the defendant testified that the
carcasses that were not inside the deep freezers had come from a deep freezer that she kept in
her barn. The defendant explained that, after her electrical service was terminated, she had
moved the carcasses from the barn freezer to the basement because the basement was the
“coolest spot” she thought would be safe from wild animals. The defendant acknowledged that
the environment in the basement was not healthy, and she all but conceded that, given the lack
of ventilation, the conditions in the basement were potentially injurious to the animals being
housed there.
¶ 36 When asked about Shane, the defendant testified that he had injured his left hind leg by
getting it caught in the door of his cage while attempting to escape while she was away one
day. The defendant explained that, when she subsequently freed the leg, it was swollen from
the compression. The defendant testified that she had treated the injury by massaging the leg
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and giving Shane antibiotic and anti-inflammatory medications. The defendant stated that,
although the injury had not resulted in an open wound, she had nevertheless feared that she
might have to eventually amputate the leg or at least “a couple toes.” The defendant testified
that she had decided to “ride it out,” hope for the best, and monitor the leg’s temperature and
texture for signs of necrosis. The defendant indicated that, several days later, she noticed that
the paw had died and that Shane had chewed off the dead flesh. The defendant further indicated
that Shane would not have felt anything because the foot was dead. The defendant noted,
however, that the exposed “pink tissue” around Shane’s protruding bones indicated that there
was still “some blood flow” to the remaining portion of the leg. The defendant testified that
she had bandaged the leg but that Shane had eaten the bandages. The defendant explained that
she had planned on amputating Shane’s leg after performing Chief’s surgery, but the situation
with Max unexpectedly arose. The defendant testified that, although the leg “looked bad,” she
did not think that Shane had been mistreated. The defendant testified that Shane’s condition
had been “stable” and that he had been “running around on three legs.”
¶ 37 With respect to Chief, the defendant testified that his testicular tumor had been killing him
and that he would have died from it had it not been removed. The defendant stated that she
knew Chief’s surgery was going to be risky and that she was grateful he had survived it. She
explained that Chief’s surgery had been “bloody” due to the size of the blood vessels that had
been attached to the tumor. She further explained that she had sanitized the island counter
where she performed Chief’s operation with disinfectant and bleach and had performed the
operation using sterile medical supplies. The defendant indicated that she had performed
numerous surgeries during her 22 years as a veterinarian and that, other than the unhealthy
surroundings and her failure to shave Chief’s abdomen, she had performed Chief’s surgery in
the same manner as she had performed all the others. The defendant testified that she had given
Chief antibiotics before and after the operation to prevent infection. The defendant explained
that she had performed Chief’s surgery because he needed the operation and she needed the
money. The defendant testified that she had never cruelly treated an animal in her care and
would never intentionally do anything to harm an animal.
¶ 38 During closing arguments, the State maintained, inter alia, that Shane had obviously been
suffering because the dog had been “eating its own leg.” Referencing Rhine’s testimony, the
State noted that proper treatment of Shane’s injury would have entailed the use of an
Elizabethan collar to prevent the dog from chewing on the leg. The State argued that, despite
what the defendant had “wanted to do for Shane,” she had failed to do “what needed to be done
for Shane.” The State maintained that it had thus proven the defendant’s guilt on count VII.
¶ 39 With respect to count I, the State contended that, because the defendant had intentionally
operated on Chief in an environment that she knew was unhealthy and unsanitary, she
presumptively intended the fatal consequence. The State further suggested that, because the
defendant had deliberately chosen to operate on Chief while her license to practice veterinary
medicine was suspended, “[t]here was an intent there to do wrong.”
¶ 40 In response, the defendant emphasized that, although her kitchen counter was not “the best
place in the world” to perform Chief’s surgery, she had sanitized the counter beforehand and
had operated using sterile surgical supplies. The defendant further emphasized that Chief was
“an incredibly sick animal” and that she had removed his tumor because she was trying to save
his life. Noting that there was no evidence indicating that she had wanted to seriously injure or
kill Chief, the defendant argued that the State had failed to prove beyond a reasonable doubt
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that she acted with the specific intent required to sustain a conviction on count I. Referencing
Parton’s testimony, the defendant further argued that the State had also failed to prove that
Chief’s surgery had resulted in a bacterial infection that caused the dog’s death.
¶ 41 With respect to count VII, the defendant argued that there was no evidence that Shane had
actually “suffered due to a serious infection,” as the State had alleged in its amended
information. The defendant further argued that, although it was undisputed that Shane had
“chewed on” his leg, “the dog didn’t chew his leg off,” as the State had also alleged. The
defendant asserted that the State had thus failed to prove its charge pertaining to Shane. The
defendant further asserted that she had provided Shane with proper treatment and care after he
lost his foot due to compression necrosis.
¶ 42 The trial court ultimately found the defendant guilty on all counts of the State’s amended
information with the exception of count VI, which the State dismissed midtrial. In September
2016, the court denied the defendant’s motion for a new trial and sentenced her to a two-year
term of probation. The court additionally ordered her to obtain a mental health evaluation and
complete any recommended treatment. See 510 ILCS 70/3(d), 3.02(c) (West 2014). The
defendant subsequently filed a timely notice of appeal pursuant to Illinois Supreme Court Rule
606 (eff. Dec. 11, 2014).
¶ 43 ANALYSIS
¶ 44 The defendant argues that the State failed to prove her guilty beyond a reasonable doubt
on counts I, VII, VIII, IX, X, XI, and XII of its amended information. The defendant does not
challenge her convictions on counts II through V, which alleged instances of practicing
veterinary medicine without a license. As previously indicated, count I charged the defendant
with aggravated cruelty to a companion animal with respect to Chief, count VII charged her
with violating an animal owner’s duties with respect to Shane, and counts VIII through XII
charged her with violating an animal owner’s duties with respect to several “caged” dogs that
were physically described but not named.
¶ 45 “The due process clause of the fourteenth amendment to the United States Constitution
safeguards an accused from conviction in state court except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime charged.” People v. Brown, 2013 IL
114196, ¶ 48. When a defendant challenges the sufficiency of the State’s evidence on appeal,
a reviewing court must view the evidence in the light most favorable to the State and determine
whether any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Id. “Under this standard, a reviewing court must allow all reasonable
inferences from the record in favor of the prosecution” (People v. Davison, 233 Ill. 2d 30, 43
(2009)), and a defendant’s conviction will only be reversed where the evidence is so
improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt (People
v. Givens, 237 Ill. 2d 311, 334 (2010)).
¶ 46 Counts VIII, IX, X, XI, and XII
¶ 47 Pursuant to section 3(a)(4) of the Humane Care for Animals Act, animal owners are
required to provide their animals “humane care and treatment.” 510 ILCS 70/3(a)(4) (West
2014). Although what constitutes “humane care and treatment” is not statutorily defined, when
determining whether an animal was deprived of the same, we will presume that “common
sense” applies. People v. Curtis, 407 Ill. App. 3d 1042, 1049 (2011).
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¶ 48 Counts VIII through XII charged the defendant with violating an animal owner’s duties
with respect to several “caged” dogs that were physically described but not named. At trial,
the animals were identified as dogs that had been removed from the defendant’s basement, and
it was undisputed that the defendant owned the dogs in May 2015. See 510 ILCS 70/2.06 (West
2014) (“ ‘Owner’ means any person who (a) has a right of property in an animal, (b) keeps or
harbors an animal, (c) has an animal in his care, or (d) acts as custodian of an animal.”). Counts
VIII through XII specifically alleged that the defendant knowingly failed to provide humane
care and treatment for the dogs by keeping them caged “within her private residence among
other animals, surrounded by animal carcasses and feces, without sufficient ventilation or air
conditioning.” When convicting the defendant on counts VIII through XII, the trial court found
that “to one degree or another,” all of the dogs had been treated inhumanely, which we believe
is the only conclusion that the court could have reached under the circumstances.
¶ 49 The dogs found caged in the defendant’s basement were being kept near an estimated “50
to 60 or more” animal carcasses that were in varying stages of decomposition. Although the
carcasses were in plastic trash bags and most were in the deep freezers, the electricity to the
defendant’s home had been off for weeks, and there was testimony that many of the bags
outside the freezers were open. There was also testimony that carnivorous beetles had begun
“cleaning up” the carcasses in the open bags. The floor in the basement was described as
“almost slick [and] slimy from urine [and] feces,” and Dr. Rhine observed that many of the
dogs’ cages contained feces in amounts that were unhealthy and unacceptable. There was
testimony that the odors emanating from the defendant’s residence could be smelled 30 to 40
feet away from the house, and the air in the basement was described as “[v]ery difficult to
breathe.” The firefighters who wore hazardous-materials suits when removing the dogs and
carcasses used self-contained breathing apparatuses to protect themselves and make the job
“easier.” An animal control officer who assisted in the removal effort without a breathing
apparatus testified that he had to take breaks between his trips to the basement so he could
“spend a few minutes outside to kind of clear [his] lungs out.” Ballard testified that keeping
live pets near decomposing animal carcasses would be unhealthy for the pets. Rhine testified
that decomposing animal carcasses are fraught with bacteria and that keeping live animals near
decomposing animal carcasses would be unhealthy and inhumane. The defendant
acknowledged that the environment in the basement was unhealthy, and she all but conceded
that, given the lack of ventilation, the conditions were potentially injurious to the animals who
were being housed there.
¶ 50 A finding that an animal was deprived of humane treatment and care can be sustained upon
evidence showing that the animal’s owner failed to consider the animal’s health and well-being
as a person of ordinary intelligence would have. See Curtis, 407 Ill. App. 3d at 1049. Here, the
evidence established that, although the defendant was an experienced veterinarian who should
have known better, she ignored what a person of ordinary intelligence would have readily
recognized, i.e., that caging dogs in her basement was inhumane given the deplorable
conditions. Although when interviewed by Captain Thomas the defendant claimed that the
dogs in her basement were happy, healthy, and well cared for, that claim reflected the type of
rationalization symptomatic of an animal hoarder. See 510 ILCS 70/2.10(iv) (West 2014)
(defining a “[c]ompanion animal hoarder” as one who, inter alia, “displays an inability to
recognize or understand the nature of or has a reckless disregard for the conditions under which
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the companion animals are living and the deleterious impact they have on the companion
animals’ and owner’s health and well-being”).
¶ 51 On appeal, the defendant intimates that we should reverse her convictions on counts VIII
through XII because the State failed to prove that the identified dogs were in imminent danger
and failed to prove that she would not have corrected the conditions in her basement had she
been given the opportunity to do so. As the State observes, however, neither of those
propositions were elements that it was required to establish to meet its burden of proof.
¶ 52 Count VII
¶ 53 Pursuant to section 3(a)(3) of the Humane Care for Animals Act, animal owners are
required to provide their animals “veterinary care when needed to prevent suffering.” 510 ILCS
70/3(a)(3) (West 2014). Although “suffering” is not statutorily defined, the term’s plain and
ordinary meaning has been recognized as “experiencing physical pain or emotional distress.”
In re Debra B., 2016 IL App (5th) 130573, ¶ 38. When determining whether an animal needed
veterinary care to avoid experiencing physical pain or emotional distress, we will again
presume that common sense applies.
¶ 54 As previously noted, count VII of the State’s amended information charged the defendant
with violating an animal owner’s duty with respect to Shane, another dog she undisputedly
owned in May 2015. Count VII specifically alleged that the defendant “knowingly failed to
provide veterinarian care as needed to prevent the suffering of ‘Shane,’ a dog that due to a
serious infection, chewed its leg off, exposing its flesh and bone.”
¶ 55 On appeal, the defendant argues that her conviction on count VII cannot stand because the
State failed to prove that Shane “suffered a serious infection that caused him to chew his leg
off.” The defendant notes that her testimony that Shane lost his left hind foot to compression
necrosis was uncontradicted and that Dr. Rhine could only speculate that an infection had
caused the dog to chew on its leg. When rejecting this argument below, the trial court
concluded that count VII’s use of the phrase “a dog that due to a serious infection, chewed its
leg off, exposing its flesh and bone” was used to describe the dog identified as “Shane,” as
opposed to the “suffering” that the defendant should have prevented with proper veterinary
care. The court further concluded that the exact cause of Shane’s initial injury was ultimately
irrelevant because the essential elements that the State was required to prove were that Shane
needed veterinary care to prevent suffering and that the defendant failed to provide such care.
We agree with the trial court’s reasoning and find that the defendant’s argument stems from a
tortured reading of count VII. The State did not allege that the defendant failed to prevent
Shane from “suffering” a serious infection, and the specific injury or ailment that led to Shane’s
leg being in the condition that it was in when he was removed from the defendant’s home was
not something that the State was required to allege or prove. It is well established that where a
charging instrument alleges all the essential elements of an offense, “other matters
unnecessarily added may be regarded as surplusage.” People v. Collins, 214 Ill. 2d 206, 219
(2005).
¶ 56 With respect to the State’s proof of the charge, when finding the defendant guilty on count
VII, the trial court concluded that, through Hodapp’s testimony and the photographs showing
the condition of Shane’s leg when the dog was removed from the defendant’s home, the State
had proven beyond a reasonable doubt that Shane had needed “some serious veterinary care”
that the defendant had failed to provide. Viewed in the light most favorable to the State, the
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trial evidence amply supported that finding and further supported the trial court’s implicit
determination that Shane had suffered while chewing on his leg to the point that the metatarsals
were pronouncedly protruding and the surrounding flesh was predominately skinless.
Although at trial the defendant suggested that Shane would not have felt anything while
chewing off his necrotic foot, Shane’s wound extended well beyond the junctions of the bones
to which the foot had been attached. Furthermore, the defendant herself noted that the exposed
“pink tissue” around the bones indicated that there was still “some blood flow” to the remaining
portion of the leg. Although Rhine did not give an estimate as to the wound’s age, he testified
that it was granulating and that Shane had “obviously already been licking the wound for a
while.” Under the circumstances, it was reasonable for the trial court to conclude that, even if
Shane had been found in “stable” condition as the defendant suggested at trial, as matter of
common sense, the dog had suffered at some point while performing what Rhine described as
a partial amputation of its own leg. We also note that the defendant again exhibited the type of
rationalization symptomatic of an animal hoarder when she suggested that, although Shane’s
leg “looked bad,” he had not been neglected.
¶ 57 Count I
¶ 58 In pertinent part, the statute defining the offense of aggravated cruelty to a companion
animal states “[n]o person may intentionally commit an act that causes a companion animal to
suffer serious injury or death.” 510 ILCS 70/3.02(a) (West 2014). A “companion animal” is
statutorily defined as “an animal that is commonly considered to be, or is considered by the
owner to be, a pet.” Id. § 2.01a.
¶ 59 The offense of aggravated cruelty to a companion animal is a specific intent crime designed
to prevent the intentional killing or injuring of companion animals. People v. Primbas, 404 Ill.
App. 3d 297, 301 (2010). To prove a commission of the offense, the State must therefore show
that the defendant intentionally performed an act that caused a companion animal to suffer
serious injury or death and that the defendant did so with the specific intent to kill or seriously
injure the animal. Id.; People v. Lee, 2015 IL App (1st) 132059, ¶ 51. A defendant acts with
the intent to accomplish the result described by a statute defining an offense when his or her
“conscious objective or purpose is to accomplish that result.” 720 ILCS 5/4-4 (West 2014).
Because an intent to kill or injure is a state of mind that is generally not proven by direct
evidence, such an intent may be inferred from the character of the defendant’s acts and the
circumstances surrounding their commission. People v. Terrell, 132 Ill. 2d 178, 204 (1989).
¶ 60 Count I of the State’s amended information alleged that the defendant committed the
offense of aggravated cruelty to a companion animal by intentionally performing a surgical
operation on Snoddy’s pet dog, Chief, “in an unsterile manner at her private residence, thereby
committing an act that caused [Chief’s] death.” When finding the defendant guilty on count I,
the trial court concluded that the surgery that the defendant performed on Chief was the cause
of his death and that the “intent element” of the offense had been proven because the defendant
“had to know” that operating on Chief in an unsterile manner “was going to harm him.” When
denying the defendant’s motion for a new trial, the court similarly stated that the defendant
had acted with the requisite intent because “[s]he had to know when she proceeded in that
manner in that place that she was harming him, and the outcome could not be good.”
¶ 61 On appeal, the defendant advances multiple arguments in support of her contention that
her conviction on count I should be reversed, several of which are directed at the trial court’s
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finding that Chief’s death resulted from the surgery she performed. The only argument we need
address, however, is the defendant’s claim that the State failed to prove that she performed the
surgery with the requisite intent.
¶ 62 In the present case, none of the evidence adduced at trial supported an inference that the
defendant’s conscious purpose or objective was to kill or seriously injure Chief when she
operated on him in an unsterile manner. It was rather undisputed that the defendant had been
Chief’s veterinarian since he was a pup, that she performed Chief’s surgery because he needed
a testicular tumor removed, and that she loved animals to a fault and would never intentionally
harm one. We note that the State has never maintained that the defendant deliberately
contaminated Chief’s incision site and that the defendant’s conduct before, during, and after
the operation was inconsistent with an intent to injure or kill. See People v. Mitchell, 105 Ill.
2d 1, 9-10 (1984). Viewing the trial evidence in the light most favorable to the State, as a
trained veterinarian, the defendant clearly acted recklessly (see 720 ILCS 5/4-6 (West 2014)
(“A person is reckless or acts recklessly when that person consciously disregards a substantial
and unjustifiable risk that circumstances exist or that a result will follow, described by the
statute defining the offense, and that disregard constitutes a gross deviation from the standard
of care that a reasonable person would exercise in the situation.”)) and perhaps acted
knowingly, as the trial court suggested (see id. § 4-5(b) (“A person knows, or acts knowingly
or with knowledge of *** [t]he result of his or her conduct, described by the statute defining
the offense, when he or she is consciously aware that that result is practically certain to be
caused by his conduct.”)). Evidence that a defendant acted knowingly with respect to a lethal
result is insufficient, however, to show that the defendant acted with the specific intent that the
result actually occur. See People v. Tamayo, 73 Ill. 2d 304, 310 (1978); People v. Trinkle, 68
Ill. 2d 198, 202 (1977).
¶ 63 On appeal, the State intimates that we should affirm the defendant’s conviction on count I
by applying the rule of “presumed malice and intent.” People v. Marrow, 403 Ill. 69, 74 (1949).
Pursuant to that rule, a defendant is presumed to intend the natural and probable consequences
of his or her acts, and evidence that the defendant committed a voluntary and willful act which
has the natural tendency to cause death or great bodily harm is sufficient to prove an intent to
kill. Terrell, 132 Ill. 2d at 204; Marrow, 403 Ill. at 74; see also People v. Glazier, 2015 IL App
(5th) 120401, ¶¶ 15-16; People v. Medrano, 271 Ill. App. 3d 97, 103-04 (1995). “For example,
when a defendant intentionally uses a deadly weapon upon the victim, it may properly be
inferred that he intended to cause the death of the victim.” Terrell, 132 Ill. 2d at 204; see also
Primbas, 404 Ill. App. 3d at 302-03 (holding that the circumstances surrounding the
defendant’s act of fatally shooting a relative’s pet dog with a pellet gun was sufficient to sustain
a finding that the defendant acted with the specific intent to kill or injure the dog despite his
claim that he shot “merely to shoo away what he believed was a feral animal”). The doctrine
of presumed malice and intent is not a substantive rule of law, however, and cannot be applied
reflexively. See People v. Bell, 113 Ill. App. 3d 588, 594 (1983) (noting that, if applied
indiscriminately, the rule “ ‘would in effect destroy the concept of intention and replace it
entirely with negligence’ ” (quoting Wayne R. LaFave & Austin W. Scott, Handbook on
Criminal Law § 28, at 203 (1972))). Our supreme court has long recognized that the rule is
only applicable where the character of a defendant’s act and the “absence of qualifying facts”
lead to the “natural and irresistible conclusion” that the destruction of life was intended. People
v. Coolidge, 26 Ill. 2d 533, 537 (1963); People v. Simmons, 399 Ill. 572, 578 (1948); Weaver
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v. People, 132 Ill. 536, 541 (1890); see also People v. Williams, 165 Ill. 2d 51, 64 (1995);
People v. Salazar, 126 Ill. 2d 424, 450 (1988). In other words, the rule is only applicable where
the facts of a case justify its application. Bell, 113 Ill. App. 3d at 594.
¶ 64 Here, the facts do not justify the application of the rule of presumed malice and intent. The
defendant’s scalpel was not employed as a deadly weapon (see People v. Blanks, 361 Ill. App.
3d 400, 411 (2005)), and as previously noted, none of the evidence adduced at trial supported
an inference that the defendant’s conscious purpose or objective was to kill or seriously injure
Chief when she operated on him in an unsterile manner. We further note that, although the trial
court suggested that the “intent element” of count I had been proven because the defendant had
acted knowingly, the court declined the State’s invitation to find that the defendant
presumptively intended the fatal consequence of Chief’s operation. On appeal, the State cites
People v. Robards, 2018 IL App (3d) 150832, in support of its contention that we should affirm
the defendant’s conviction on count I, but the present case is readily distinguishable.
¶ 65 In Robards, the defendant was convicted on charges of aggravated cruelty to a companion
animal after she “abandoned her dogs and left them alone to die.” Id. ¶ 19. The evidence in
Robards established that, when the defendant moved out of a house that she was renting, she
left her two pet dogs inside with no access to food or water. Id. ¶¶ 4-5, 15. After several months,
during which the defendant told the owner of the house that the dogs were being cared for on
a daily basis, the dogs were found dead from starvation and dehydration. Id. ¶¶ 4-6, 15. On
appeal, when rejecting the defendant’s claim that the State had failed to prove that she had
acted with the specific intent that the dogs perish or suffer serious injury, the Robards court
noted that “[t]he natural consequence of not feeding or providing water to pets is that they will
die.” Id. ¶ 15. The court thus held that, “[a]s a person intends ‘the natural and probable
consequences of his acts’ [citation], it follows that the defendant had the requisite intent
necessary to be found guilty of aggravated cruelty to a companion animal.” Id.
¶ 66 The facts in Robards justified the application of the rule of presumed malice and intent
because the defendant’s intentional failure to feed or water her dogs for several months and the
absence of qualifying facts led to the natural and irresistible conclusion that the destruction of
the dogs’ lives was intended. Again, however, the facts in the present case do not justify the
application of the rule. We also note that, unlike the present case, Robards addressed a situation
where the defendant’s specific intent could be inferred from a course of conduct occurring over
an extended period of time. See also People v. Banks, 161 Ill. 2d 119, 132-35 (1994) (holding
that, where the defendant’s deliberate conduct over an extended period of time included
exposing the infant victim to subfreezing temperatures and preventing the child from receiving
adequate nourishment, the evidence was sufficient to sustain a finding that the defendant
intended to kill the child, who ultimately died from starvation and hypothermia); People v.
Koshiol, 45 Ill. 2d 573, 575, 578 (1970) (holding that the defendant’s specific intent to kill her
husband was established by evidence that she had been feeding him arsenic for several months
and had attempted to feed him additional doses while he was hospitalized for chronic arsenic
intoxication), overruled on other grounds by People v. Nunn, 55 Ill. 2d 344 (1973); People v.
Lee, 2015 IL App (1st) 132059, ¶¶ 52-63 (holding that a rational juror could have concluded
that the defendant intended to seriously injure or cause the death of horses that were stabled on
his property by finding that he knew that the horses were being kept in deplorable conditions
without sufficient food and water yet consciously allowed the situation to continue for over a
year); People v. Land, 2011 IL App (1st) 101048, ¶ 102 (holding that the jury could have found
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that the defendant acted with the specific intent to cause serious injury to her dog where the
evidence established that she was aware that the dog’s heavy chain had broken through the
dog’s skin yet took no action “during the four to six weeks it took for the chain to become
seriously embedded in the dog’s neck”).
¶ 67 “Reasonable doubt exists as a matter of law when the State fails to prove an essential
element of the offense.” People v. Fountain, 2011 IL App (1st) 083459-B, ¶ 13. Here, the State
failed to prove beyond a reasonable doubt that the defendant acted with the specific intent to
cause Chief serious injury or death, and we accordingly reverse her conviction on count I.
¶ 68 CONCLUSION
¶ 69 For the foregoing reasons, we hereby reverse the defendant’s conviction on count I of the
State’s amended information and affirm her convictions on the remaining counts upon which
she was found guilty.
¶ 70 Affirmed in part and reversed in part.
¶ 71 JUSTICE CATES, concurring in part and dissenting in part:
¶ 72 The acts that gave rise to the charges in this case occurred in June 2015. The State issued
its amended indictment in May 2016. Defendant was found guilty on all counts after a three-
day bench trial in July 2016. Defendant subsequently filed a posttrial motion, which was denied
by the trial court in September 2016.
¶ 73 Now, almost four years later, this court is presented with the initial appeal of the
defendant’s judgment of conviction. Although I understand the long-standing staffing issues
faced by our appellate defenders, the delay in bringing appeals before this court on a timely
basis is of great concern, as it impacts access to justice. Recently, the Illinois Judicial
Conference issued a three-year strategic agenda designed “to protect the rights and liberties of
all.” 1 While altruistic in its goals, the plan does not specifically address the significant backlog
of cases in the criminal justice system, despite the critical need to do so. 2 As a court of review,
it is our responsibility to see that appellate cases, both criminal and civil, are presented to this
court for review in a timely manner.
¶ 74 That said, I concur in that portion of the opinion that affirms defendant’s convictions on
counts VII, VIII, IX, X, XI, and XII. I disagree, however, with the reasoning of the majority
regarding count I and would affirm the trial court’s conviction on that count. As noted by the
majority and set forth in Primbas, “[w]hen a court reviews a challenge to the sufficiency of the
evidence, the relevant question is whether, after viewing the evidence in a light most favorable
to the State, any rational trier of fact could have found the essential elements of the crime
1
Ill. Judicial Branch Strategic Agenda 2019-2022, https://courts.illinois.gov/SupremeCourt/
Jud_Conf/IJC_Strategic_Agenda.pdf (last visited Apr. 7, 2020) [https://perma.cc/7FQA-UJ6K].
2
A six-month pilot program, using volunteer pro bono attorneys, to help reduce the backlog of
criminal appeals is being implemented and tested in the First and Second Districts of the Appellate
Court. If favorable results are found, then it may be expanded to our other appellate districts. Laura
Bagby, Illinois Supreme Court Launches Pro Bono Pilot to Address Criminal Appeals Backlog, 2
Civility (Feb. 20, 2020), https://www.2civility.org/illinois-supreme-court-launches-pro-bono-pilot-to-
address-criminal-appeals-backlog/ [https://perma.cc/8T95-7AXE].
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beyond a reasonable doubt.” 404 Ill. App. 3d at 302. The reviewing court is not allowed to
substitute its judgment for that of the trier of fact on questions involving the weight of the
evidence, the credibility of the witnesses, or conflicts in the testimony. Id. Those are matters
for the trial court.
¶ 75 Nevertheless, in reversing the defendant’s conviction as to count I, the majority seems to
have substituted its judgment for that of the trial judge on matters of credibility and weight of
the evidence. In my view, there is ample evidence, albeit circumstantial, to support the trial
court’s finding that the “intent” element of the offense of aggravated cruelty to a companion
animal was satisfied when the defendant had to know that performing the surgical removal of
Chief’s tumor would cause the dog harm.
¶ 76 The actions of the defendant prior to performing the surgical procedure on Chief must be
considered in addition to the overwhelming evidence regarding defendant’s actions at the time
of the procedure. Defendant admitted that she was performing veterinarian services in a home
environment that was cluttered with dead animal carcasses, covered in animal feces, and
without sufficient ventilation or air conditioning. The testimony revealed that the smell was so
offensive to a process server who had been to the defendant’s home that a call was placed to
the Williamson County Sheriff’s Office. The process server reported that “a strong odor of
death” was emanating from the home and that no one was answering the door. Dogs were also
heard barking inside. Even the defendant acknowledged during her interview that the feces-
laden environment was not healthy.
¶ 77 It is of no matter that Chief’s owner voluntarily brought Chief to defendant or that
defendant loved animals and was trying to help Chief because his testicular tumor was going
to cause his death. Regardless of which expert the trial court believed, the testimony was clear
that Chief was in very poor physical condition at the time the defendant decided to perform the
testicular tumor surgery on her kitchen counter. Even the defendant was not sure that Chief
would survive the surgery. Based on this evidence, the trial court could have reasonably found
beyond a reasonable doubt that the performance of the surgery, in completely unsterile
conditions, constituted the intentional act that caused Chief’s hastened demise.
¶ 78 In light of the foregoing, I would affirm the defendant’s conviction on count I of the State’s
amended information. Therefore, I respectfully dissent.
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