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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ROBIN LEE SICKEL,
                                                     Court of Appeals No. A-11393
                           Appellant,                Trial Court No. 3KN-11-48 CR

                    v.
                                                               OP INION
STATE OF ALASKA,

                           Appellee.                  No. 2480 — December 4, 2015


             Appeal from the District Court, Third Judicial District, Kenai,
             Sharon A.S. Illsley, Judge.

             Appearances: David D. Reineke, under contract with the Public
             Defender Agency, and Quinlan Steiner, Public Defender,
             Anchorage, for the Appellant. Samuel D. Scott, Assistant
             District Attorney, Kenai, and Michael C. Geraghty, Attorney
             General, Juneau, for the Appellee.

             Before: Mannheimer, Chief Judge, and Allard, Judge.

             Judge MANNHEIMER.


             Robin Lee Sickel and her romantic partner, Jeff Waldroupe, owned three
horses. They kept these horses on land owned by Waldroupe’s father. In mid-December
2010, these horses were found to be starving and without shelter. The only food and
water available to them was frozen solid. One of the horses was more than 200 lbs
underweight; it had collapsed and had lain there so long that its head and the side of its
body were frozen to the ground. The horse had to be euthanized.
              Sickel was convicted of cruelty to animals under AS 11.61.140(a). This
statute declares that it is a crime if a person, “with criminal negligence[,] fails to care for
an animal” and this failure to provide care leads to the animal’s death or causes the
animal severe physical pain or prolonged suffering. AS 11.61.140(a)(2).
              Sickel now appeals her conviction. She points out that, as a legal matter,
a person who fails to prevent a harm does not act “with criminal negligence” unless the
person has an applicable duty of care — a legal duty to try to prevent the specified
harm. 1
              The statute at issue in this case, AS 11.61.140(a), does not define which
persons have a duty to care for particular animals. The statute simply declares that any
person who violates this duty (acting with at least criminal negligence) is guilty of a
crime if their breach of duty leads to the animal’s death or causes the animal severe
physical pain or prolonged suffering. Because the statute fails to define who bears a duty
to care for animals, Sickel argues that the statute is unconstitutionally vague and that her
conviction for cruelty to animals is therefore unlawful.
              It is true that the cruelty to animals statute fails to specify which persons
have a duty to care for particular animals. But we are authorized to look to the common
law to remedy this omission. As we explain in this opinion, we hold that the statute
applies to all persons who have undertaken responsibility for the care of an animal —
either because they are the owner of the animal, or because they have agreed to kennel



   1
        See Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982),
pp. 659-662; Wayne R. LaFave, Substantive Criminal Law (2nd edition 2003), § 6.2(a),
Vol. 1, pp. 436-443.

                                             –2–                                          2480

or board the animal, or because they have otherwise assumed responsibility for the
animal’s care.
              And even though AS 11.61.140(a)(2) is silent regarding this principle, the
parties recognized that this principle controlled the outcome of Sickel’s case: they
actively litigated whether Sickel had undertaken personal responsibility for the care of
the horses, and their final arguments to the jury emphasized that this question was
dispositive of Sickel’s guilt or innocence. We therefore affirm Sickel’s conviction.


       The scope of the duty of care under AS 11.61.140(a)(2)


              Sickelwas charged with violating subsection (a)(2) of the cruelty to animals
statute. This clause of the statute applies to a person who “fails to care for an animal”.
In other words, the actus reus of this crime is defined as an omission — a failure to act.
              And as we explained earlier, the law does not punish a person’s failure to
act unless that failure to act constitutes a breach of that person’s legal duty. See
AS 11.81.900(b)(43) (defining “omission”). And normally, a person has no duty to take
affirmative action to prevent a crime or to protect others from harm. 2 But the common
law recognizes several instances in which one person’s relationship to another person
creates a duty of protection or care. Thus, under the common law, parents have a duty
to protect their minor children, ship captains must come to the aid of their crew and their
passengers, and jailors must protect the inmates in their custody. In general, see Wayne
R. LaFave, Substantive Criminal Law (2nd edition 2003), §6.2(a)(1), Vol. 1, pp. 437-38.




   2
       See Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982), pp.
659-662; Wayne R. LaFave, Substantive Criminal Law (2nd edition 2003), § 6.2(a), Vol. 1,
pp. 436-443.

                                           –3–                                         2480

              The common law also recognizes that a duty of care can arise by contract
or agreement, or by any other voluntary assumption of care. Thus, a person employed
as a lifeguard at a beach or swimming pool assumes a duty of care toward the swimmers,
and a person employed as a crossing guard at a school has a duty of care toward the
students. In general, see LaFave, § 6.2(a)(3), Vol. 1, pp. 439-440. And if someone
voluntarily assumes responsibility for a helpless person (even in the absence of
compensation or formal agreement), this likewise gives rise to a duty to protect the
helpless person from further harm. LaFave, § 6.2(a)(4), Vol. 1, p. 440.
              In past Alaska cases, these common-law principles of responsibility have
been applied to define the scope of criminal statutes — even when those statutes do not
expressly speak of liability based on a failure to act. In both Willis v. State, 57 P.3d 688,
693-97 (Alaska App. 2002), and Michael v. State, 767 P.2d 193, 197-98 (Alaska App.
1988), 3 this Court held that a parent can properly be convicted of assault for failing to
take reasonable steps to protect their child when they know that the child is in danger of
being assaulted by the other parent.
              Here, we are dealing with a statute that expressly defines the prohibited
conduct as a failure to act. But a failure to act can not be punished unless it constitutes
a breach of duty. To define the scope of the applicable duty, we conclude that we should
turn to the common-law principles that we have been discussing.
              The underlying aim of AS 11.61.140(a)(2) is to protect animals from
serious neglect by the people who have assumed responsibility for their care. Typically,
these people will be the animals’ owners. But there will be times when other people
assume responsibility for the care of an animal, either in conjunction with the owners or
in lieu of the owners. Thus, the real question is not to identify the persons who have


   3
       Reversed on other grounds, 805 P.2d 371 (Alaska 1991).

                                            –4–                                         2480

legal ownership of the animal, but rather the persons who have taken on the duty of
caring for them.
              This is borne out by the corresponding law of other jurisdictions. For
example, both California and Rhode Island define the duty as falling on any person
“having the charge or custody of any animal, either as owner or otherwise”. 4 Texas law
declares that the duty of care applies to “[any] animal in the person’s custody”. 5
              While the owners of animals may often be the ones who are in charge of
providing their daily care, this is not always true. Thus, in State v. Yorczyk, 356 A.2d
169, 170 (Conn. 1974), the court held that it was reversible error to instruct the jury that
the owner of an animal is criminally liable for its mistreatment or neglect, even when the
owner did not have charge and custody of the animal and did not know that it was being
mistreated or neglected. See also Muhlhauser v. State, 1900 WL 1185, *5 (Ohio 1900),
where the Ohio Supreme Court held that it was reversible error to prohibit the owner
from introducing evidence that the animals were in someone else’s custody, and that the
owner had no reasonable notice that the animals lacked sufficient food or water, or that
they were otherwise being mistreated.
              We therefore hold that AS 11.61.140(a)(2) applies only to people who have
assumed responsibility for the care of an animal, either as an owner or otherwise.




   4
       California Penal Code § 597(b); Rhode Island General Laws § 4-1-2(a).
   5
       Texas Penal Code § 42.09.

                                           –5–                                         2480

       Application of this law to Sickel’s case


              The trial judge in Sickel’s case did not instruct the jury that the cruelty to
animals statute was limited in this way. The judge instructed the jury that the State had
to prove that Sickel failed to care for the horses, and that she acted “with criminal
negligence” in failing to care for the horses, but the judge never told the jury directly that
there was no “criminal negligence” unless the State proved that Sickel had a duty to care
for the horses.
              However, we have repeatedly held that flaws in jury instructions can be
cured by the arguments of the parties. 6 We have examined the final arguments of the
parties in Sickel’s case, and we are convinced (based on those arguments) that the jurors
understood that Sickel could not be convicted of cruelty to animals unless she had
assumed responsibility for the care of the horses.
              In the early portion of the prosecutor’s summation, the prosecutor clarified
that “ownership” of the horses was not the issue — that the issue was whether Sickel had
assumed responsibility for the care of the horses, either because she was one of the legal
owners or because she otherwise assumed responsibility for the care of the horses by
“exercis[ing] essentially all the attributes, all the characteristics of ownership”.
              The prosecutor emphasized the evidence that the horses were purchased
primarily for Sickel’s benefit, and that Sickel fed the horses on a regular basis and
provided their other necessities. The prosecutor also emphasized that it was Sickel who
made the decision to call the veterinarian, and who made the decision whether the horse
would be euthanized by injection or by shooting. Toward the end of his summation, the
prosecutor told the jurors:

   6
      See, e.g., Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002); O’Brannon v. State,
812 P.2d 222, 229 (Alaska App. 1991).

                                            –6–                                          2480

                      [These] animals are in a unique situation. They’re in a
              pen; ... they can’t leave. So they’re essentially totally reliant
              on the people caring for them, totally at their mercy. ...
              These are essentially helpless creatures, completely relying
              on ... two people: it’s Robin [Sickel] and Jeff [Waldroupe] ...
              who’ve frankly failed in that obligation to care for those
              animals.

              The defense attorney’s primary argument to the jury was that Sickel did not
act negligently — that she could not reasonably have known that the horse was in such
a dire condition. Sickel’s attorney did not dispute that Sickel assumed responsibility for
the care of the horses. Rather, the defense attorney suggested that Sickel should be
acquitted because Jeff Waldroupe and Jeff Waldroupe’s father also assumed
responsibility for the care of the horses, but the State did not charge these two men with
cruelty to animals.
              Given the attorneys’ arguments, the jurors would have understood that they
could not convict Sickel unless they found that Sickel had undertaken a responsibility
to care for the horses.
              In her brief to this Court, Sickel contends that the prosecutor did not merely
argue that Sickel could be convicted because she assumed responsibility for the care of
the horses. Rather, according to Sickel, the prosecutor suggested that Sickel could be
convicted because she failed to meet a moral responsibility toward the horses.
              The last three paragraphs of the prosecutor’s rebuttal summation are
arguably ambiguous on this point. When read out of context, the prosecutor’s remarks
could potentially be interpreted as inviting the jury to convict Sickel because she had the
last clear chance to alleviate the horses’ condition, regardless of whether she had
assumed responsibility for the horses’ care.


                                            –7–                                        2480

              Specifically, the prosecutor noted that Sickel knew more about horses than
Jeff Waldroupe and the other people who were involved in caring for the horses, and that
Sickel was the person who was tending the horses during the last three days before the
discovery of the collapsed horse (the horse that had to be euthanized).
              But when these remarks are read in context, they are merely extensions of
the prosecutor’s primary argument that Sickel had assumed responsibility for the care of
the horses. In particular, when the prosecutor remarked that Sickel had the last
opportunity to do something to save the dying horse, this was based on the prosecutor’s
assertion that Sickel had essentially assumed sole responsibility for the care of the horses
during the last three days.
              Viewing the prosecutor’s argument as a whole, the jurors would have
understood that the prosecutor was asking them to find legal responsibility (i.e., Sickel’s
assumption of a duty of care), not moral responsibility.


       Conclusion


              We hold that subsection (a)(2) of the cruelty to animals statute requires
proof that the defendant assumed responsibility for the care of an animal, either as an
owner or otherwise.
              Even though Sickel’s jury was not instructed on this element of the offense,
we conclude that this flaw was cured by the arguments of the parties.
              Accordingly, the judgement of the district court is AFFIRMED.




                                           –8–                                         2480

