State v. Acker

• Decision Date: 27 October 2015
• Docket Number: No. 36578.,36578.
• Citation: 125 A.3d 1057,160 Conn.App. 734
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Frederick ACKER.

160 Conn.App. 734

125 A.3d 1057

STATE of Connecticut

v.Frederick ACKER.

No. 36578.

Appellate Court of Connecticut.

Argued Feb. 5, 2015.

Decided Oct. 27, 2015.

Frederick B. Acker, self-represented, with whom, on the brief, was Ralph C. Crozier, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom were Meredith S. Blake, special deputy assistant state's attorney, and, on the brief, David S. Shepack, state's attorney, and Devin T. Stilson, supervisory assistant state's attorney, for the appellee (state).

SHELDON, PRESCOTT and WEST, Js.

WEST, J.

The defendant, Frederick Acker, appeals from the judgment of conviction of fifteen counts of animal cruelty in violation of General Statutes § 53–247(a).¹ On appeal, the defendant claims that (1) there was insufficient evidence to support the conviction and (2) § 53–247(a) is unconstitutionally vague as applied to the facts of this case. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In the fall of 2012, the defendant was the director of a private organization, Connecticut Pets Alive, Inc., also known as the Society for the Prevention of Cruelty to Animals of Connecticut, Inc., which maintained a nonprofit facility to house rescued dogs in Monroe. In October, 2012, the defendant, on behalf of Connecticut Pets Alive, Inc., rented a second, larger rescue facility in Bethlehem (Bethlehem facility).² The Bethlehem facility was a three section barn with garage doors, a concrete floor, and an open rafter roof. The defendant rented the right and center bays of the barn. His plan was for the dogs to be kept in the right, unfinished bay until the construction on the center bay was completed, after which the plan was to move the dogs to the center bay and complete the right section.

On October 10, 2012, a dog escaped from the Bethlehem facility. On October 11, 2012, Judy Umstead, a Bethlehem/Woodbury Animal Control Officer, received a complaint about a dog on Route 63 and found a dog dead on the side of the road. Umstead visited the Bethlehem facility and determined that the dog that had been struck by a car was the dog that had escaped.

On October 17, 2012, Umstead returned to the Bethlehem facility with Department of Agriculture Animal Control Officer Richard Gregan. The defendant was not present, but his employee allowed Umstead and Gregan to enter, tour, and photograph the Bethlehem facility, and to look at the dogs. They observed that the facility lacked insulated outer walls, hot water, and adequate interior lighting. They observed three small space heaters that produced inadequate heat in light of the size of the space and the lack of insulation.

After the visit, Gregan called the defendant to voice his concerns that cold weather was coming and that the Bethlehem facility was inadequately heated. Gregan advised the defendant that the space heaters were inadequate for the Bethlehem facility. In response to Gregan's concerns, the defendant explained that he knew the overnight temperatures were getting colder, and that he boarded the small dogs overnight with his veterinarian, David Basak–Smith, so that they could be warm.³ The defendant stated that he was making plans to heat the building properly, and to address most, if not all, of the concerns Gregan voiced.

On November 8, 2012, at approximately 7:45 a.m., State Trooper Matthew Eagleston and Umstead arrived at the Bethlehem facility because they were concerned about the cold temperatures. The approximate high and low outdoor temperatures in Morris on November 6, 7, and 8, 2012, were 38 and 20 degrees, 33 and 27 degrees, and 35 and 31 degrees, respectively.⁴ There was light to moderate snow on November 7, 2012, and the winds on November 8, 2012, ranged from a low of 10 miles per hour to a high of 27 miles per hour. An employee of the defendant arrived shortly after 7:45 a.m., and gave Eagleston and Umstead permission to enter the Bethlehem facility and look around. The conditions inside the Bethlehem facility were very cold and drafty, with two operating space heaters providing little heat. Many of the dogs were in travel size crates intended for short-term confinement, with no bedding other than some newspaper.

After leaving the Bethlehem facility, Eagleston prepared a search and seizure warrant to seize the dogs and have them evaluated by a veterinarian. At 3:30 p.m. that day, Eagleston and the search team entered the Bethlehem facility to execute the warrant. Eagleston observed that a thermometer near one of the space heaters indicated that the temperature was 36 degrees. Each dog was briefly evaluated by a veterinarian, Bradley Davis, photographed by the state police, and then removed from the Bethlehem facility by Davis and animal control officers.

On December 2, 2013, the state filed an amended long form information charging the defendant with sixty-three counts of animal cruelty in violation of § 53–247(a). Each count identified a different dog and alleged that the defendant had confined and failed to give the animal "proper care by exposing him [or her] to conditions that placed him [or her] at risk of hypothermia

, dehydration, or to conditions injurious to his [or her] well-being...."

After a trial to the court, Danaher, J., the defendant was convicted of fifteen counts⁵ and acquitted of the remaining forty-eight counts of animal cruelty. In reaching its decision, the trial court relied on State ex rel. Gregan v. Koczur, 287 Conn. 145, 947 A.2d 282 (2008) ( Koczur ). In Koczur, the evidence showed that the defendant was keeping forty-six live cats and one dead cat in a 950 square foot home, much of which was so cluttered with personal effects and trash that it was unusable. Id., at 157, 947 A.2d 282. In determining the meaning of neglect under General Statutes § 22–329a, the court looked to § 53–247, as § 22–329a incorporates by reference the standards set forth in § 53–247. Id., at 153, 947 A.2d 282. The court concluded that the trial court had applied the proper standard in determining that the cats were neglected, because "the failure to give proper care to a confined animal or to provide it with proper food constitutes neglectful conduct in violation of § 53–247(a)." Id., at 155, 947 A.2d 282.

In the present case, the trial court found: "[U]nlike the situation in Koczur where the cats at issue were within the defendant's residence and presumably had [some] freedom to move about, the dogs in this case spent most of their days, and up to sixteen hours overnight, confined in carriers. Many of the latter carriers were intended for transport and not long-term confinement. Further, the dogs were confined in a facility that was not sufficiently heated. In Koczur most of the animals required further medical treatment after they were seized; in this case most of the dogs that were seized did not require treatment for conditions related to their confinement. However, there were fifteen dogs that were in jeopardy on the date they were seized, due to the low temperature in the environment where the defendant had confined them. The latter fifteen dogs required transfer to a warm environment when they were seized."

The court further found: "Some of the dogs seized in this case were of a size and breed which made them particularly susceptible to cold temperatures. The defendant was on notice that the lack of heat in the facility was problematic; and although the defendant made some efforts to ameliorate the cold conditions in which the dogs were confined, those efforts were inadequate as to some of the dogs. The fact that the defendant was on notice that the facility was unheated, the fact that he made meager efforts to address the cold temperatures to which the dogs were exposed, the fact that he misled an animal control officer as to the manner in which he cared for smaller dogs at night, all coupled with the testimony regarding the conditions at the facility on the date of the seizure, combine to convince the court that the state established, beyond a reasonable doubt, that a person of ordinary intelligence would know that the manner in which certain small dogs were confined was not proper care."

The court concluded that the defendant had failed to give proper care to fifteen dogs "by exposing those dogs to conditions injurious to their well-being [by confining] those dogs in a facility that, in view of the nature of the confinement, provided inadequate heat for the size and breed of the ... dogs." The court imposed a total effective sentence on all charges of six months incarceration, execution suspended, followed by two years probation. This appeal followed.

I

The defendant's first claim is difficult to decipher. He titles his first claim: "The court applied an improper standard in finding the defendant guilty pursuant to [§] 53–247(a) as to specific dogs having insufficient evidence of improper care to warrant the findings versus other dogs of same or similar breeds." At first glance, it appears the defendant is arguing that the court applied an improper legal standard because he states "[t]he meaning of ‘proper care’ is a question of statutory interpretation over which review is plenary," and cites the standard used when interpreting a statute. The defendant, however, goes on to describe the evidence presented as to each of the dogs at issue and to argue how that evidence was insufficient to support the court's conclusion that the defendant had failed to provide proper care to that dog.⁶ He argues that the only basis for each finding of guilt was the court's belief that on a certain day some of the dogs were cold and that he provided inadequate heat for the size and breed of such dogs. He contends that none of the dogs needed emergency medical treatment or follow-up treatment. We interpret the defendant's first claim as raising a sufficiency argument—namely, that the court improperly found that he had violated § 53–247(a) because there was...