Hughes v. State

• Decision Date: 07 February 2020
• Docket Number: CR-17-0768
• Citation: 315 So.3d 1139
• Parties: Jerome Wesley HUGHES v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

315 So.3d 1139

Jerome Wesley HUGHES

v.STATE of Alabama

CR-17-0768

Court of Criminal Appeals of Alabama.

February 7, 2020

Rehearing Denied May 22, 2020

Certiorari Denied July 10, 2020

Alabama Supreme Court 1190712

Allen K. Mitchell, Dothan, for appellant.

Steve Marshall, atty. gen., and Robin D. Scales, atty. gen., for appellee.

On Return to Remand ^*

MINOR, Judge.

Jerome Wesley Hughes was convicted of six counts of first-degree cruelty to a dog, see § 13A-11-241(a), Ala. Code 1975, and of one count of second-degree cruelty to a dog, see § 13A-11-241(b), Ala. Code 1975. For the first-degree cruelty-to-a-dog convictions, Hughes was sentenced to concurrent terms of 5 years in prison, split to serve 100 days in community corrections. For his second-degree cruelty-to-a-dog conviction, Hughes was sentenced to serve 12 months in the Houston County jail.¹ He raises four issues on appeal: (1) whether § 13A-11-241(a), Ala. Code 1975, is unconstitutionally vague; (2) whether the circuit court erred in admitting evidence of a subsequent remedial measure; (3) whether Hughes was denied his fundamental right to testify in his own defense at trial; and (4) whether there was sufficient evidence to convict him of six counts of first-degree cruelty to a dog. For the reasons discussed below, we hold that there is no merit to any of the issues that Hughes raises on appeal.²

Facts and Procedural History

In October 2014, Hughes's ex-wife, Valeria, contacted the Cottonwood Police Department to do a welfare check on her son, who is also Hughes's son. There was an ongoing custody dispute between Hughes and Valeria, and the welfare check was to make sure that the child was safe. Valeria also complained that there were animals at Hughes's house that were not being treated properly.

Colonel Jim Smith, the Public Safety Director for the Cottonwood Police Department, performed a welfare check at Hughes's residence on October 9, 2014. Col. Smith confirmed that Hughes's son was okay, but he noticed that there were dogs inside two cages on the front porch and that the cages had urine and feces in the food and water bowls. Col. Smith went back to Hughes's residence the next day for another welfare check, but no one was at home. During that visit Col. Smith saw several dogs with no rabies tags.

Officer Mitch Murkerson of the Cottonwood Police Department testified that he went to Hughes's residence on October 10, 2014, and that he saw a large dog chained to a tree in the front yard. That dog's mammary glands were "very swollen, inflamed." Officer Murkerson noticed "a couple of other dogs" that were "running loose." (R. 144-45.) Officer Murkerson testified that he saw a water bowl but that he did not recall seeing any food for the dogs.

A few days later Mike Meadows, who was at that time a police officer with the Cottonwood Police Department, went to Hughes's residence. Officer Meadows saw a dog tied to a tree, several white "bulldog-type dogs" roaming free in the front yard, and a French bulldog in a crate on the porch. The crate and the water bowl inside the crate had feces in them. No one answered the door, so Officer Meadows put a notice on Hughes's door advising Hughes that officers had observed emaciated dogs in cages without food or water and without rabies tags and instructing Hughes to correct the issues by October 21, 2014. A copy of the notice was also mailed to Hughes's residence.

On October 16, 2014, Hughes called Col. Smith about the notice that he had received. Col. Smith testified that he "encouraged [Hughes] to try to resolve the issues that we identified and take care of the animals." (R. 278.) Hughes contacted Col. Smith a few other times in October and November to advise Col. Smith of the steps he had taken to care for the dogs and to ask for additional time to remedy the situation.

On November 21, 2014, Officer Murkerson was on patrol when he saw a dog in the roadway that he recognized from Hughes's property. The dog "appeared thin" but was mobile and did not appear to be sick. (R. 147.) Officer Murkerson went to Hughes's house to return the dog, but no one came to the door. He saw a small black dog in a cage on the front porch. The cage was full of feces. He also saw, tied to a tree in the front yard, the same dog that had been tied to that tree over a month earlier.

Col. Smith testified that in December 2014 the temperature had dropped and Hughes had still not provided the dogs with adequate shelter and was still not in compliance with the notice, so he decided to obtain a search warrant to go onto the property. Before he did so, Col. Smith contacted the Humane Society of the United States ("H.S.U.S.") and, on behalf of the Town of Cottonwood, entered into an agreement with H.S.U.S. for their assistance in removing the dogs from Hughes's property and for caring for the dogs after removal.

On December 30, 2014, while arrangements were still being made to line up a place for the dogs to be housed once they were removed from the property, Officer Meadows went back to Hughes's property in response to receiving another complaint. Officer Meadows testified that he observed dogs with their bones "showing through their rib and their backbone." Later that same afternoon, with permission from Hughes's neighbor, Officer Meadows went onto Hughes's neighbor's property to view the back part of Hughes's property and to count and photograph the dogs on Hughes's property. Officer Meadows estimated that he saw "[a]nywhere from 70 to 100 dogs" on Hughes's property. (R. 192.)

The search warrant was executed at Hughes's property on January 12, 2015. Col. Smith testified that they found several dogs outside that looked like "skin and bones." (R. 292.) He testified that the cages for some of the dogs were too small based on the size of the dogs. He testified that inside the house there was a large number of puppies in the back of the house between the washer and dryer. There was "a lot of dog feces and urine present," and the puppies appeared to be "skin and bones." (R. 290-91.) Officer Murkerson testified that the inside of the house was a "nasty environment" and "smelled like urine, feces." He testified that there were dog feces "all over the floor." (R. 161-62.)

Chris Schindler testified that in January 2015 he was employed with H.S.U.S. He testified that on January 12, 2015, he, along with "probably several dozen" other staff and experts from H.S.U.S.'s Animal Cruelty Rescue and Response Team, participated in the removal of the dogs from Hughes's property. Schindler testified that there were several dogs on the property whose ribs and backbones were showing. He testified that "many of the dogs did not have water and food." Although a few of the dogs running loose outside had clean water, most of the animals had either green, dirty water or none at all. Schindler testified that, although they found three 50-pound bags of dog food in the living room, the food was not accessible by the dogs and the dog food in the bags was enough to feed all the dogs on the property for only one day.

Schindler testified that most of the dogs outside had inadequate shelter. He testified that some of the dogs had sought shelter in "an abandoned-looking vehicle" and were "huddled up trying to get warm." (R. 349-50.) He testified that other dogs had access to plastic barrels for shelter but that, considering the weather conditions, the barrels would have provided inadequate shelter because the barrels, which were lying directly on the frozen ground, would have been the same temperature as the frozen ground.

Dr. Mark Colicchio, a veterinarian, testified that, at Schindler's request, he was present at Hughes's house for the removal of the dogs. Dr. Colicchio testified that he saw "no food whatsoever" for the dogs outside. (R. 483.) He testified that the shelter provided for the dogs outside was inadequate. The only clean water Dr. Colicchio saw for the dogs outside was in a container near the front of the house, but that water was accessible only to the dogs running loose on the property and not to the dogs that were in pens or cages. Dr. Colicchio testified that inside the house there were feces and urine "all over the place." He testified that the urine "was emitting an ammonia smell that is toxic to the animals" and that "my first impression was you know, the health of the animals, in my opinion, was vastly compromised by that." (R. 487.)

In all, 67 dogs were seized from Hughes's property. Most of the dogs were of the "Dogo Argentino" breed, which Dr. Colicchio testified is "designed to be [a] cross of a Cordoba fighting dog." (R. 480.)

Dr. Colicchio conducted an "in-field examination" of each of the dogs. Each dog was given an identifier based on where on the property the dog was located. For each dog that he examined, Dr. Colicchio completed an in-field worksheet that he used to, among other things, score each dog on a scale of one to nine. Dr. Colicchio also examined the dogs the following day after the dogs had been taken to Lake City, Florida, where H.S.U.S. had made arrangements for the dogs to be housed.

Dr. Colicchio testified that the normal weight range for an adult Dogo Argentino is around 88 pounds. (R. 480-81.) Regarding the 7 Dogo Argentino dogs that are the subject of this appeal, he testified that the estimated weight of those dogs ranged from 15 pounds to 55 pounds. Most of the dogs had a body score of one, which Dr. Colicchio testified is the lowest score on the range and means that the dog was emaciated. The remaining dogs each had a body score of two, which means that those dogs were "very thin." Dr. Colicchio testified that a score of one, two, or three is considered unhealthy. Dr. Colicchio testified that all the dogs had severe muscle loss and that some of the dogs had no muscle mass. Many of the dogs had wounds

or scars, and some of them were infested with fleas. Dr. Colicchio testified that the dogs were in a painful condition that was prolonged and that...