Mogil v. State, CR-15-0011.

• Decision Date: 16 December 2016
• Docket Number: CR-15-0011.
• Citation: 225 So.3d 211
• Parties: David Martin MOGIL v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

225 So.3d 211

David Martin MOGIL

v.STATE of Alabama

CR-15-0011.

Court of Criminal Appeals of Alabama.

Dec. 16, 2016

William H. Broome and William H. Broome, Jr., Anniston, for appellant.

Luther Strange, atty. gen., and James B. Prude, asst. atty. gen., for appellee.

JOINER, Judge.

David Martin Mogil appeals his conviction for aggravated cruelty to an animal, see § 13A–11–14.1, Ala. Code 1975, and his sentence of 10 years' imprisonment. The trial court split that sentence to time served followed by supervised probation.¹ The trial court ordered Mogil to pay a $1,000 fine, a $262.50 bail-bond fee, and a $50 crime victims' compensation assessment.

The State's evidence at trial tended to show the following. James Wright, the owner of Grady Electrical Contractors, testified that, on November 19, 2014, he and two employees, Brian Roberts and Donald Pippen, were working at Rack and Roll Billiards in Anniston. Wright explained that Rack and Roll Billiards is adjacent to a restaurant named Damn Yankees, and a second-story balcony with a solid-wall railing is located directly above the back entrance to Damn Yankees. Although Wright had never heard any dogs on the balcony, he had seen dogs peek their heads over the railing.

When Wright arrived at Rack and Roll Billiards at approximately 7:30 a.m., Pippen was standing outside, and he and Pippen "heard an animal yelping and hollering." Mogil was standing on the balcony cursing and "pretty much just hollering and making a lot of movement." Wright described Mogil's movement as "kicking something" and "an erratic movement in a very angrily [sic] manner." Mogil eventually went inside, and Wright and his employees continued their work inside Rack and Roll Billiards.

Wright left the work site for approximately 30 minutes, and, when he returned, he found Pippen standing outside again. Wright testified, "I heard the dog hollering again, and I seen the hose being slung toward the dog, you know, and going in a downward motion several times." Wright could see Mogil from the waist up, and he observed Mogil swinging a water hose "over his shoulder and then back to the ground." Wright testified that he heard a dog "hollering like crazy" and that "[i]t was a little worse this time. It was yelping and screaming and hollering, and it went away again because [Mogil] went back inside." Wright stated that, when Mogil returned to the balcony, "[Mogil] started toward the dog, and he bailed out." Wright observed the dog jump off the balcony; he stated that the dog "hit like this little table thing and it fell. It just laid there. Its legs were moving for a minute. I assumed that the dog might have died right then. I didn't know because I never seen it get back up."

Wright went back inside Rack and Roll Billiards because a security guard from a nearby bank had also witnessed the incident, and Wright assumed the security guard would take control of the situation. Wright eventually spoke with the security guard because Wright's employees were upset, and the security guard left the area to notify a police officer of the incident. Wright then testified:

"I went back inside working again, and it wasn't a couple of minutes later and Dave [Mogil] comes in. When Dave comes in, he just comes straight in, and I guess he didn't know who he was talking to. He came straight up to me, and he was hollering, ‘I didn't hit that dog.’ And I said, ‘Dave, I seen you hit that dog.’ And then he just put his hand out and said, ‘Well, it bit me.’ I said, ‘So now you're saying it bit you because you obviously hit it.’ He got really aggravated because of my questioning and the fact that I saw it, and I told him I saw it."

(R. 118.)

Donald Pippen testified that he was working for Grady Electrical Contractors at Rack and Roll Billiards on the morning of November 19, 2014. When Pippen arrived, he heard a dog yelping as if it was hurt, and he observed Mogil "hitting a cocker spaniel with a push broom." Pippen clarified that Mogil was not hitting the dog hard; he explained that the dog was on the balcony railing and that Mogil was attempting to get the dog off the railing and back onto the balcony. Pippen stated that the dog was clearly frightened but that he did not believe Mogil's hitting it with the broom was the cause of its yelping.

Pippen and Roberts started their work inside Rack and Roll Billiards, and Wright eventually left to purchase material. When Wright returned, Pippen was outside watching Mogil swing a water hose. Pippen could not see the dog, but he could hear it yelping. Pippen stated, "He hit the dog. I know he hit the dog because it was hollering." Pippen testified:

"We kept observing. I went over to Jamie [Wright's] truck, and I was telling Jamie what was going on. Jamie got kind of irate, but he went inside, and he said leave him alone and let him do what he is doing, whatever. At that point, Jamie went inside. I came back out. Me and Brian Roberts came back out, and the dog was up on the balcony. Dave was out there, you know, hollering, cussing, or whatever. And to be honest, I don't know if he swung the water hose or not, but I know the dog jumped off the rail onto the pavement down below, like two stories. A dog ain't just going to jump like that, that far for no reason."

(R. 143.) After the dog jumped, Pippen saw the dog "bleeding from his mouth laying [sic] on the concrete" and "kicking his little legs." Pippen testified that Mogil subsequently confronted Wright inside Rack and Roll Billiards. Mogil initially denied hitting the dog; however, he later admitted hitting the dog because, he said, it bit him. Mogil's girlfriend eventually arrived and retrieved the dog.

Ross Cash, a security officer at Regions Bank in Anniston, explained that the main entrance to the bank "is right across the alley from Damn Yankees." Cash testified that, on November 19, 2014, he saw a cocker spaniel he knew as "Coco" jump off the railing of the balcony that is located above Damn Yankees. During the previous two weeks, Cash had regularly talked to the dog and had never before seen her standing on the railing of the balcony. On this morning, however, the dog was "petrified" and was standing on the balcony railing. Cash testified that, when Mogil came out onto the balcony, the dog immediately "jumped to get away from him." After the dog jumped, it "never showed any signs of movement" until Allison Johnson—whom Cash described as "Coco's momma"—arrived. Cash testified, "When she saw Allison, it's like it kicked in. She jumped up and run right to Allison."

Allison Johnson testified that, on November 19, 2014, she was dating Mogil and had been living with him at the apartment located above Damn Yankees for approximately two weeks. Johnson also kept her pets—a cocker spaniel named Coco Lily, a pug named Rider, and a cat named Bo Kitty—at the apartment. On the morning of the incident, Johnson had been at work for about an hour when Mogil called her and told her to come home. When Johnson arrived, "Officer Cash came up [to her] and said that something had happened to Lil."² Coco Lily ran up to Johnson, and she noticed that the dog was not behaving as it normally did; Coco Lily was bleeding from her mouth, had "used the bathroom on herself," "had her back tucked down," and "wasn't wagging her tail." Coco Lily followed Johnson to a staircase that leads up to the apartment, but the dog stopped because Mogil was standing at the top of the staircase. Mogil screamed, "[D]o not let that fucking dog in my house," and threatened to kill Coco Lily. Johnson retrieved a towel from the apartment and cleaned Coco Lily before taking her to the veterinarian's office. Johnson testified that State's Exhibit 3, photographs of Coco Lily taken at the veterinarian's office, showed dark striping on the dog's coat that was not her natural coloring. After leaving the veterinarian's office, Johnson took Coco Lily to her ex-husband's house because she felt the dog would not be safe at Mogil's residence.

Mogil later explained to Johnson that he was attempting to put the dogs outside on the balcony; because Coco Lily was not moving fast enough, Mogil reached down to pick her up, and she bit his hand. Johnson did not see any visible signs of injury to Mogil's hand and stated that Coco Lily does not have a history of biting. On the following day, law-enforcement officers questioned Johnson about Coco Lily's welfare; at Mogil's instruction, Johnson did not answer any of the officers' questions.

Dr. Ginger Bailey, a veterinarian at the Southside Pet Clinic, testified that, on November 19, 2014, she examined Coco Lily because, she was told, the dog had jumped off a balcony. Dr. Bailey stated that Coco Lily "had a little bit of blood on her chin" due to an abrasion but that she did not observe any other injuries. According to Dr. Bailey, it is not unusual for a dog that has jumped off a balcony to lack injuries such as bruises or broken bones. Dr. Bailey sent Coco Lily home with antibiotic medication to treat the abrasion and antiinflammatory medication because she expected the dog to be sore.

Dr. Bailey could not determine whether Coco Lily had been hit with a hose but, in her professional opinion, the act of hitting an animal with a hose absent a life-threatening situation constitutes cruel mistreatment. Dr. Bailey stated that, even if being hit with a hose did not cause a physical injury, it could still cause pain to an animal. Dr. Bailey testified that, hypothetically, a dog that moved slowly but ate normally could be evidence indicating injury resulting either from a fall off a balcony or being struck with a hose.

Sergeant Michael Webb of the Anniston Police Department went to Mogil's apartment to check on Coco Lily. Mogil informed Sgt. Webb that Coco Lily was not his dog, that she belonged to Johnson, and that he did not know Coco Lily's whereabouts. Sgt. Webb also questioned Johnson "about how the dog was, where the dog was, what vet it had went to. She refused to answer any...