State v. Schuman
| Decision Date | 18 October 2022 |
| Docket Number | A-21-943,A-21-946 |
| Parties | State of Nebraska, appellee, v. Thomas A. Schuman and Carl Schuman, appellants. |
| Court | Nebraska Court of Appeals |
Appeals from the District Court for Boyd County: Mark D Kozisek, Judge. Affirmed.
Michael J. Tasset, of Johnson & Mock, P.C., L.L.O., for appellants.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Following a consolidated jury trial in the district court of Boyd County, brothers Thomas A. Schuman and Carl Schuman were each convicted of one count of abandonment or cruel neglect of a livestock animal, resulting in serious injury, illness, or death in violation of Rev. Stat. § 54-903(1) (Reissue 2021), one count of abandonment or cruel neglect of a livestock animal, not resulting in serious injury, illness, or death in violation of § 54-903(1), and 13 counts of failure to properly dispose of a dead animal in violation of Neb. Rev. Stat. § 54-744(1) (Supp. 2009) (Repealed 2020). In their consolidated appeal, Thomas and Carl assert that the evidence was insufficient to support their convictions. We affirm.
On July 28, 2021, Carl and Thomas were each charged by identical amended informations with 13 counts of abandonment or cruel neglect of animals, in violation of § 54-903(1), and 13 counts of failure to properly dispose of an animal between January 1, 2019, and March 12, in violation of § 54-744(1). The original informations are not included in our record. A consolidated jury trial was held over 4 days in August 2021.
A bomb cyclone, described by meteorologists as a winter hurricane, caused extreme weather and flooding in Nebraska on March 13, 2019. A key issue discussed at trial was whether the alleged abandonment or neglect, and improper disposal of the Schumans' livestock occurred as a direct result of the bomb cyclone.
The State presented the testimony of several community members who observed dead, as well as thin, cattle on the Schuman ranch prior to the bomb cyclone. A lineman traveled the roads around the Schuman ranch in January 2019 and February, and recalled "quite a few" dead cattle laying "all over" the ranch. The lineman also noticed that the Schuman cattle were much thinner than the cattle on other ranches he would pass. In February, a participant in a coyote calling competition drove past the Schuman ranch and saw a number of dead cattle and recalled a stench in the air. A neighbor who lives 1 mile from the Schuman ranch testified that in the months before the bomb cyclone, she saw dead cattle throughout the ranch. At one point, the neighbor and her children counted 30 dead cattle on the ranch, but the neighbor could not recall if this counting occurred before or after the bomb cyclone. The neighbor noted that she occasionally saw Thomas and Carl taking bales of hay out to the cattle, but that all the cattle were visibly skinny.
Boyd County Sheriff Clarence Wrede testified that he had received calls regarding the condition of the cattle on the Schuman ranch. One call was from an organizer of a coyote calling competition, who reported numerous dead cattle visible from the road outside the ranch. Prior to the bomb cyclone on March 13, 2019, Wrede drove to the Schuman ranch in an attempt to check the condition of the cattle but Wrede was only able to observe "bumps in the snow," which he presumed were dead cattle.
Wrede returned to the Schuman ranch around March 28, 2019. At that time, he drove along the Schuman property and photographed dead cattle on the ranch. Wrede was able to look into three different pastures and counted over 50 carcasses.
Several days later, Wrede returned to the Schuman ranch along with the county attorney. During that trip, Wrede observed that the snow had melted and he was able to count additional carcasses. Wrede then drafted an affidavit for a search warrant to inspect the cattle.
The search warrant was executed on April 9, 2021. Wrede was accompanied to the Schuman ranch by Investigator Brent Deibler of the State Branding Commission and Boyd County Deputy Sheriff Randal Kruse. Wrede and his team drove through the ranch and Wrede instructed Kruse to photograph the property. 117 of Kruse's photographs were entered into evidence. Wrede observed several dead animals in a creek on the property and along the road. Exhibit 109 was a photograph that depicted a "pile of carcasses" that was found about a quarter of a mile away from the Schumans' home.
As Wrede continued to drive through the ranch, he found 13 dead and three living cattle inside a dam on the property. Wrede noted that Exhibits 1, 4, and 5 depicted the dam and cattle he was describing. The cow pictured in Exhibit 4 has a large pile of manure behind her. Wrede estimated that the cow had been laying in the dam, unable to move, for 3 or 4 days. Because Wrede observed the three living cows to be in distress and unable to stand, he euthanized the animals.
Wrede then described the process of "mouthing" where one checks to see whether a cow has a full lower set of teeth. If a cow is missing their front two bottom teeth, they have a challenging time grazing and may become malnourished. Wrede mouthed two of the dead cattle found on the Schuman ranch. Wrede found that both had full sets of teeth, and therefore should be easily grazing, though they had been in poor health prior to their death.
Following the execution of the search warrant, Wrede provided care to the remaining Schuman cattle. Over 20 days elapsed from the time the ranch was searched to when the cattle were sold at auction. During these 20 days, the cattle were not treated with medication, but grazed in a pasture on the Schuman ranch previously closed off to the animals, and were fed hay and high protein lick tubs. Wrede stated that the change in diet, "made all the difference in the world." He described the cattle appearing fuller and less emaciated and noted that they "looked a lot better," than the day the search warrant was executed.
Wrede acknowledged that on the day he first went out to the Schuman ranch, he stopped to talk to Carl and informed him that the deceased cattle needed to be buried or disposed of. Carl told Wrede that the ground was frozen and he was unsure how he would be able to bury the carcasses. When Wrede returned to the ranch with the county attorney, some of the carcasses had been moved.
Wrede also stated that he had seen the Schumans feeding their cattle bales of hay, but maintained that the cattle were not being fed enough. Wrede conceded that other ranches had experienced livestock loss as a result of the bomb cyclone, though he had not observed dead cattle on any other ranch as he patrolled the roads in Boyd County.
Wrede discussed his interview with the Schumans on the day of the search. Despite his asking, neither of the Schumans informed Wrede of how many cattle they owned. The Schumans were unaware that any animals were in the dam, as they had last been fed 3 or 4 days prior and not checked since. The Schumans stated that they were unable to access the carcasses and were not able to move the live cattle because the corrals on the ranch were muddy. One brother also noted that he did not want to go out to the corrals because he experienced dizziness and was concerned he may fall.
Deputy Sheriff Randall Kruse's testimony regarding the search of the Schuman ranch on April 8, 2019, was consistent with Wrede's. Kruse described the ranch as "very desolate," with little grass for grazing, large areas of mud, and no hay or other feedstuffs in the pasture area for the cattle to eat. He estimated he observed over 300 dead cattle on the ranch. The vast majority of the live animals he observed were thin and weak, with little musculature.
Brent Deibler, a criminal investigator with the Nebraska Brand Commission, was also present for the search of the Schuman ranch. Deibler discussed two groups of photographs entered into evidence and noted that while they were taken in the same area of the ranch, they displayed differences in the dead animals. For example, the cow in Exhibit 93 was quite clean, whereas the cattle in Exhibit 87 was entirely covered in mud. Deibler explained that the different conditions indicated to him that the cows in Exhibit 87 died earlier than the one in Exhibit 93, as the bodies showed more signs of decay and were muddy. Deibler estimated that the cattle in Exhibit 87 had died prior to the bomb cyclone and the cow in Exhibit 93, afterwards.
While searching the ranch, Deibler took notes regarding the conditions of the rangeland. Most of the pastures he observed were "extremely short grazed." He observed some hay in the stack yard on the ranch, and some remains of hay in that area as well. He found a pasture that had very tall and heavy grass that had not been grazed, but the gates to it were shut and the cattle were unable to access it.
Deibler also noted that the cattle he observed on the Schuman ranch covered a variety of conditions, ranging from nearly normal to very poor condition,
Dr Kirk Sholes, a veterinarian who has a cattle-focused practice, later joined the law enforcement officers on the search of the Schuman ranch. Sholes testified that a body condition score is a 9-point scale used to evaluate a cow's physical condition, 1 being very emaciated and 9 being obese. Optimal numbers are around 5 or 6 for cattle. The body condition score is ascertained by examining the fat...
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