Opinion
No. 1-643 / 00-1693.
Filed December 30, 2002.
Appeal from the Iowa District Court for Polk County, GEORGE W. BERGESON, Judge.
Lee Pontious appeals from the judgment and sentence entered upon a jury verdict finding him guilty of animal neglect. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Lee Pontious appeals from a judgment and sentence entered upon his conviction, following a jury trial, of animal neglect as a serious misdemeanor in violation of Iowa Code sections 717B.3(1) and 717B.3(3) (1999). He contends the evidence at trial was insufficient to support his conviction. He also contends his trial counsel was ineffective in several respects. Finally, he claims the sentencing court abused its discretion in failing to give adequate reasons for the sentence he received. We reverse in part, affirm in part, and remand for resentencing.
I. Background Facts and Proceedings.
A jury could have found the following facts. The defendant's dog had puppies. The mother dog and her pups received little attention from Pontious. Although Pontious provided a penned-in area for his dogs, his pets often roamed the neighborhood, eating from other people's trashcans. A passing car struck one of the puppies. A neighbor picked up the injured animal, took it inside her home, and provided it with food and water. She called the Animal Rescue League. An animal control officer came to the scene. The officer admonished Pontious to keep the puppies confined in their pen. The injured animal was taken to the Animal Rescue League and placed for adoption.
A few days later, a passing car hit another puppy. The puppy suffered serious injuries. A neighbor called law enforcement officers for help. Pontious informed a deputy sheriff the puppy was his and told him he would take care of it. The deputy left the area with the understanding Pontious would take care of his pet. The deputy returned to the Pontious home about thirty minutes later after a neighbor reported that nothing had been done about the dog. The animal was later euthanized.
On July 26, 2000, the State filed an amended trial information, charging Pontious with animal neglect, a serious misdemeanor, in violation of Iowa Code sections 717B.3(1) and 717B.3(3). The State claimed Pontious failed to supply an animal with a sufficient quantity of food and water or, in the alternative, deprived an animal of necessary sustenance. The State alleged the actions of the defendant resulted in the serious injury or death of an animal. A jury found Pontious guilty as charged, and the district court sentenced him to one year in jail with all but 120 days suspended, plus two years probation. The court further ordered Pontious to complete a mental health evaluation and pay restitution to the Animal Rescue Unit. Pontious appealed.
Pontious claims the evidence was insufficient to prove him guilty of animal neglect. If error was not preserved on this issue, he contends his counsel was ineffective for failure to make an adequate motion for judgment of acquittal. Pontious raises two additional claims of ineffective assistance of counsel: (1) that counsel failed to request a jury instruction on the meaning of the term "sustenance" as used in section 717B.3(1); and (2) that counsel failed to object to testimony regarding injuries to the puppies. Pontious also claims the district court abused its discretion by failing to give adequate reasons for the sentence it imposed.
II. Discussion.
Pontious first claims there was insufficient evidence to prove all the necessary elements of the crime of animal neglect as a serious misdemeanor. Although we have some concern about the lack of specificity of the defendant's motion for judgment of acquittal, we will address this claim on its merits. We employ the familiar substantial evidence test in determining whether the evidence is sufficient to support a conviction. See Iowa R.App.P. 6.14(6)(a); State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). Substantial evidence is that from which a rational trier of fact could find a defendant guilty beyond a reasonable doubt. Thomas, 561 N.W.2d at 39. The evidence is viewed in a light most favorable to the State, including all legitimate inferences that reasonably may be deduced from the record. Id.
Section 717B.3 makes animal neglect a crime. Section 717B.3(1) provides that:
A person who impounds or confines, in any place, an animal is guilty of animal neglect, if the person does any of the following: fails to supply the animal during confinement with a sufficient quantity of food or water; fails to provide a confined dog or cat with adequate shelter; or tortures, deprives of necessary sustenance, mutilates, beats, or kills an animal by any means which causes unjustified pain, distress, or suffering.
The trial court informed the jury that the State had the burden to prove the following in order to convict Pontious of animal neglect as a serious misdemeanor: (1) that Pontious impounded or confined an animal, and (2) that he either intentionally failed to supply the animal with a sufficient quantity of food or water resulting in serious injury to or the death of the animal, or intentionally deprived the animal of necessary sustenance resulting in serious injury to or the death of the animal. The court also instructed the jury that Pontious was guilty of the lesser-included offense of animal neglect as a simple misdemeanor if he intentionally or negligently deprived an impounded animal of necessary sustenance, or intentionally or negligently failed to supply an impounded animal with a sufficient quantity of food or water.
The jury heard the following evidence. Pontious's neighbors testified that the mother dog and her puppies appeared poor looking and thin and that the puppies' ribs were visible. A next-door neighbor testified Pontious fed the dogs only a few times per week. Cindy Alley, an Animal Rescue League employee, testified that the puppy she saw was thin, sad looking, and generally not well cared for. William King testified that he observed the mother dog to be a little underweight, very timid, and in below-average health. The dogs often roamed the neighborhood scavenging from other people's garbage. Pontious was told to make sure that the dogs remained in their penned area. The jury also heard evidence indicating that Pontious did not promptly give attention to a puppy that had been struck and seriously injured by a car. An officer took the injured animal to the animal shelter, where it was eventually euthanized.
When viewed in the light most favorable to the State, we conclude the evidence just summarized is sufficient to support the State's charge that the defendant negligently or intentionally failed to supply his confined animals with a sufficient quantity of food or water. However, the State offered no evidence that any of the defendant's dogs suffered serious injury or death from lack of food or water. Accordingly, we conclude there was sufficient evidence to support a conviction for animal neglect as a simple misdemeanor, but not animal neglect as a serious misdemeanor.
Perhaps recognizing this problem, the State makes the alternative argument that the word "sustenance" as used in section 717B.3(1) includes not only food and water, but also "medical treatment" or care. The term sustenance is not defined in section 717B.3 and the trial court did not define the term for the jury. Assuming, without deciding, that the term sustenance includes not only food and water, but also veterinary care and treatment, we conclude the evidence is in this case is still insufficient to prove the offense of animal neglect as a serious rather than a simple misdemeanor. There is no dispute that one of the defendant's puppies was struck and seriously injured by a car. The State also does not dispute that the puppy needed to be euthanized. The record strongly suggests that Pontious unnecessarily and callously prolonged the animal's suffering by failing to promptly attend to it after it had been hit. However, the record fails to show that the defendant caused serious injury to or the death of the animal by depriving it of necessary sustenance. This is what the statute requires. In view of this conclusion, we find it unnecessary to address Pontious's claim his counsel was ineffective in failing to request a jury instruction on the meaning of the word sustenance.
Pontious next argues counsel was ineffective in failing to object to testimony regarding the injuries to the puppies. Pontious maintains counsel had a duty to object to this evidence because, under Iowa Rules of Evidence 5.402 and 5.403, it was irrelevant to the elements of animal neglect and highly prejudicial. We disagree. We conclude this evidence was relevant to the question of whether Pontious provided reasonable care for his animals and whether his actions contributed to the injury or death of any of his animals.
Because of the result we have reached, we find it unnecessary to address the defendant's remaining argument that the district court abused its discretion in failing to state adequate reasons for the sentence it imposed for the offense of animal neglect as a serious misdemeanor.
We vacate the judgment and sentence of animal neglect as a serious misdemeanor. We affirm his conviction for the lesser-included offense of animal neglect as a simple misdemeanor and we remand for sentencing on that offense.