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15-P-87                                          Appeals Court

                COMMONWEALTH     vs.   LEANNE TREFRY.


                             No. 15-P-87.

          Barnstable.       May 23, 2016. - June 15, 2016.

           Present:     Katzmann, Maldonado, & Blake, JJ.


                    Dog.   Statute, Construction.



     Complaint received and sworn to in the Orleans Division of
the District Court Department on August 9, 2013.

     The case was heard by H. Gregory Williams, J.


     Roderick S. Oreste for the defendant.
     Elizabeth Anne Sweeney, Assistant District Attorney, for
the Commonwealth.


     KATZMANN, J.   The defendant was convicted after a jury-

waived trial in District Court of two counts of violating a 2012

statute, G. L. c. 140, § 174E(f), which protects dogs from cruel

conditions and inhumane chaining or tethering.1     She now appeals,

challenging the sufficiency of the evidence.     In this case of

     1
       The defendant was acquitted of two counts of animal
cruelty in violation of G. L. c. 272, § 77.
                                                                    2


first impression, which requires review of the reach of G. L.

c. 140, § 174E, we conclude that subjecting a dog to cruel

conditions suffices to establish a violation, and we reject the

contention that outside confinement or confinement in general is

an element required to convict under the statute.    Accordingly,

we affirm.

    Background.   After the defendant's house in Brewster

(property) had been condemned in August, 2012, and she had moved

into a nursing home, her two Shetland sheepdogs, Zach and Kenji,

remained on the property, where they had access to the inside of

the condemned house and a fenced-in yard.

    Although the defendant herself was present on the property

at least intermittently even after the house had been condemned,

and she had occasional assistance from friends, the dogs were

effectively left alone on the property, which was clogged with

trash inside and out, emitted odors of trash (inside) and dog

feces (outside), and contained numerous items that would pose a

danger to the dogs' health and safety.   Neighbors, animal

control officers, and police officers observed the deplorable

conditions to which Kenji and Zach were subjected.

    On July 25, 2013, an animal control officer who had been

working with the defendant saw that Kenji was limping badly and

appeared to be in pain.   He was taken to a veterinarian, and

both dogs were removed from the property three days later.
                                                                     3


     Discussion.   The defendant's primary contention on appeal

is that G. L. c. 140, § 174E, inserted by St. 2012, c. 193,

§ 48, is inapplicable where there is no evidence that the dogs

were confined outside.2    We agree with the trial judge, however,

that this argument ignores subsection (f) of the statute, which

provides as follows:

     "No person owning or keeping a dog shall subject the dog to
     cruel conditions or inhumane chaining or the tethering at
     any time. For the purposes of this subsection, 'cruel
     conditions and inhumane chaining or tethering' shall
     include, but not be limited to, the following conditions:

     "(1) filthy and dirty confinement conditions including, but
     not limited to, exposure to excessive animal waste,
     garbage, dirty water, noxious odors, dangerous objects that
     could injure or kill a dog upon contact or other
     circumstances that could cause harm to a dog's physical or
     emotional health;

     "(2) taunting, prodding, hitting, harassing, threatening or
     otherwise harming a tethered or confined dog; and

     "(3) subjecting a dog to dangerous conditions, including
     attacks by other animals."

G. L. c. 140, § 174E(f).




     2
       We note that the defendant's argument at trial with
respect to these charges in support of her motion for a required
finding of not guilty appears to have been based in part on the
caption of the statute ("Chaining or tethering dog to stationary
object; confinement; restrictions; penalty") as opposed to the
text of the statute itself. However, "[t]he title to an act
cannot control the plain provisions of the statute, although it
may be a guide to resolving an ambiguity in the legislation."
Breault v. Ford Motor Co., 364 Mass. 352, 353 n.2 (1973). As
shall be discussed infra, here, as in Breault, there is no
ambiguity.
                                                                      4


     The statute unambiguously sets out the prohibitions on

"cruel conditions," "inhumane chaining," and "the tethering"3 in

the disjunctive as alternative means of violating the statute.

See Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 270 (2013)

(use of word "or," "presumed to be disjunctive," "sets out two

alternative ways of committing the crime").

     The plain meaning of the statute does not support the

defendant's narrow reading that outside confinement or, indeed,

confinement in general, is an element of the subjecting of dogs

to cruel conditions that is prohibited by this subsection.     See

Commonwealth v. Gopaul, 86 Mass. App. Ct. 685, 687 (2014) ("As

with all matters of statutory interpretation, we look first to

the plain meaning of the statutory language.     Where the language

of a statute is plain and unambiguous, it is conclusive as to

legislative intent" [quotations omitted]).     "[F]ilthy and dirty

confinement" under § 174E(f)(1) is but one example of the kind

of cruel conditions that are prohibited.     In addition,

§ 174E(f)(3)'s prohibition against subjecting dogs to dangerous

conditions is made, in contrast to § 174E(f)(1) and

§ 174E(f)(2), without any reference to confinement or tethering.

         Furthermore, if subjecting a dog to "cruel conditions" as

set forth in § 174E(f) was not on its own sufficient to

     3
       The reference to "the" before "tethering" may be an
allusion to the first appearance of "tethering" in an earlier
paragraph of the statute, G. L. c. 140, § 174E(a).
                                                                   5


establish liability -- in the absence of chaining or tethering

or some other means of confinement -- then such an

interpretation would render impermissibly superfluous the

inclusion of "confinement" in § 174E(f)(1) and "tethered or

confined" in § 174E(f)(2).   See Arthur D. Little, Inc. v.

Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 541

(1985) ("[W]here the Legislature has employed specific language

in one [portion of a statute], but not in another, the language

should not be implied where it is not present" [quotation

omitted]); Commonwealth v. Millican, 449 Mass. 298, 300 (2007)

("None of the words of a statute is to be regarded as

superfluous" [quotation omitted]); Commonwealth v. Perella, 464

Mass. 274, 280 (2013) ("were we to interpret 'indictment' as

implicitly incorporating 'complaint' in the first, fourth, and

fifth sentences of [G. L. c. 277,] § 63, the two explicit

references to 'complaint' in the second sentence would be

rendered impermissibly superfluous").

     The switch from the disjunctive to a combination of the

conjunctive and the disjunctive in the preamble to the

nonexhaustive list4 does not alter our analysis, as it merely

reflects § 174E's consistent equation of "chaining" and

     4
       As set forth supra, § 174E(f) provides, "No person owning
or keeping a dog shall subject the dog to cruel conditions or
inhumane chaining or the tethering at any time" -- is followed
by a nonexhaustive list of what constitutes "cruel conditions
and inhumane chaining or tethering" (emphasis added).
                                                                    6


"tethering."    See G. L. c. 140, § 174E(a) (twice referring to

"chain or tether"); G. L. c. 140, § 174E(d) ("chained or

tethered").    In effect, then, the Legislature is simply

providing examples of situations that are violative of the

statute as either cruel conditions or inhumane tethering or

chaining, a list that includes examples where dogs are confined

(§ 174E[f][1] and [2]), and examples where they are not

(§ 174E[f][3]).

       There is also no merit to the defendant's contention that

her construction is supported by reading the statute as a whole.

In fact, reading § 174E as a whole suggests that subsection (f)

is indeed different from the preceding subsections and that

subsection (e), which sets out an exception "to the above

restrictions on outdoor confinement," is the dividing line

between subsections devoted to outdoor confinement and one

addressed more generally to the conditions in which dogs are

kept.

       Nor is the defendant's construction required by prior case

law.    General Laws c. 140, § 174E, is relatively new, effective

only since October 31, 2012.    In fact, only one published

opinion in the Commonwealth has discussed it.    In Commonwealth

v. Duncan, 467 Mass. 746, 752, cert. denied, 135 S. Ct. 224

(2014), the Supreme Judicial Court included G. L. c. 140,

§ 174E, in its survey of statutes collectively evincing a
                                                                     7


"public policy promoting the humane treatment of animals."     The

court observed that in enacting G. L. c. 140, § 174E, "the

Legislature took steps to protect dogs in particular, by

prescribing the duration and conditions under which they may be

restrained outside," and noted that the statute requires, among

other things, "that dogs confined outside be provided with clean

water and appropriate shelter."   Id. at 751.

    The defendant contends that the Supreme Judicial Court's

treatment of the statute in Duncan indicates that it only

applies to those circumstances where a dog is kept exclusively

outside.   Indeed, in further discussing the role of G. L.

c. 140, § 174E, in the "legislative framework for preventing

cruelty to animals," the court focused on "the provision

regulating the conditions under which dogs may be kept outside."

Id. at 752.

    But Duncan's references to G. L. c. 140, § 174E, "amount[]

to dicta, because the elements of the crime were not at issue in

that case."   Rodriguez, 83 Mass. App. Ct. at 271.   Moreover,

given that the bulk of G. L. c. 140, § 174E, addresses tethered

dogs and dogs confined outside, we do not take the Duncan

court's focus on that aspect of the section as any indication

that the broader prohibitions contained in subsection (f) are

limited to situations in which dogs are chained outdoors.    Even

so, the Duncan court also referenced the statute's authorization
                                                                    8


of prosecutions against "dog owners" who expose "their dogs to

conditions that 'could injure or kill [them]' in ill-equipped

yards, G. L. c. 140, § 174E(f)(1)."   Duncan, 467 Mass. at 752.

The court did not state that the dogs had to be confined to

those yards in order to trigger the statute's protection, nor

would it be sensible to impose such a requirement where the

safety of dogs is imperiled even by an ill-equipped yard to

which they have access but in which they are not confined.    The

defendant's conviction here is fully consistent with the court's

citation to subsection (f) and the dangers faced by dogs in

"ill-equipped yards."

    We are also unpersuaded by the defendant's argument that

taking the words of the statute at their plain meaning brings

G. L. c. 140, § 174E(f), into conflict with the overlapping

coverage of the animal cruelty statute, G. L. c. 272, § 77,

prohibiting those who have charge or custody of an animal from,

inter alia, inflicting unnecessary cruelty on the animal,

unnecessarily failing to provide the animal with a proper

sanitary environment, wilfully abandoning the animal, or

knowingly and wilfully authorizing or permitting the animal to

be subjected to unnecessary suffering or cruelty of any kind.

There is no merit to the defendant's suggestion that the animal

cruelty statute only regulates conditions for animals confined

indoors, such that § 174E(f) should only apply to dogs confined
                                                                     9


outdoors.   Commonwealth v. Erickson, 74 Mass. App. Ct. 172

(2009), on which the defendant relies, in no way indicates that

the animal cruelty statute's scope is so limited, and such a

reading finds no support in the plain language of the broadly

worded statute.    Thus, even if we accepted the defendant's

reading of G. L. c. 140, § 174E(f), it would not eliminate her

claimed overlap with the animal cruelty statute, as overlap

would remain with respect to those cases where a confined or

tethered dog is subjected to conditions that would violate both

G. L. c. 140, § 174E(f), and G. L. c. 272, § 77.5

     Moreover, no disharmony or inconsistency automatically

arises from overlapping statutory coverage, especially where one

statute establishes a felony and another establishes a

misdemeanor.6   As we noted in Erickson, 74 Mass. App. Ct. at 176,

a "heightened mental state of 'knowing' and 'willful' conduct

was included by the Legislature" in portions of the animal

cruelty statute.    Even where the animal cruelty statute requires

only general intent, id. at 176-177, it is directed at

intentional conduct.    Cf. Duncan, 467 Mass. at 751 (observing


     5
       The defendant's theory would also deprive animals other
than dogs who are confined outdoors of the protections of the
animal cruelty statute even though they are ineligible for the
dog-specific protections of G. L. c. 140, § 174E.
     6
       Neither party has contended that G. L. c. 140, § 174E(f),
establishes only a civil infraction, and the judge treated the
charges as criminal offenses. We do the same.
                                                                     10


that "[o]ur statutes evince a focus on the prevention of both

intentional and neglectful animal cruelty" and citing G. L.

c. 272, § 77, and G. L. c. 140, § 174E [emphasis added]).       In

fact, no mental state is explicitly required under subsection

(f), and offenders are not at risk of imprisonment.7    Cf.

Commonwealth v. Belanger, 30 Mass. App. Ct. 31, 33 (1991) ("When

statutes impose punishment out of considerations of public

policy, lack of knowledge of the law or of the fact that the law

has been violated does not exonerate the person who may have

unwittingly violated the statute. . . .    Transgressions of that

sort of statute have been described as 'public welfare' or

'strict liability' offenses").

     Suffice it to say that with respect to § 174E, the

Legislature could reasonably decide that it wished to empower

law enforcement officials in some circumstances to intervene on

behalf of dogs in particular without resorting to a felony

prosecution, and a lesser mens rea would be consistent with that

objective.    See Commonwealth v. Fitta, 391 Mass. 394, 396-397


     7
         General Laws c. 140, § 174E(g), provides as follows:

     "A person who violates this section shall, for a first
     offense, be issued a written warning or punished by a fine
     of not more than $50, for a second offense, be punished by
     a fine of not more than $100 and for a third or subsequent
     offense, be punished by a fine of not more than $300, and
     be subject to impoundment of the dog in a local shelter at
     the owner's or guardian's expense pending compliance with
     this section, or loss of ownership of the dog."
                                                                  11


(1984) (rejecting defendant's argument that felony "open and

gross lewdness and lascivious behavior" statute impermissibly

overlaps with misdemeanor "indecent exposure" statute because

felony requires proof of element not required for misdemeanor);

Commonwealth v. Kessler, 442 Mass. 770, 774 (2004) (same).     This

was essentially the distinction drawn by the judge here in

finding the defendant guilty of G. L. c. 140, § 174E(f), but not

the animal cruelty statute, believing the latter to require

conduct that was "much more egregious than what we've seen

here."8

     Viewing the evidence and the permissible inferences to be

drawn therefrom in the light most favorable to the Commonwealth,

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we are

satisfied that the evidence at trial was more than sufficient to

support the judge's finding that the defendant subjected her

dogs to cruel conditions in this case.   By the time they were

removed, a neighbor described the dogs as "ravaged" and

"traumatized."   They were "incredibly tick-infested"9 and

"matted," and Kenji had contracted Lyme disease and sustained a

soft shoulder injury to his leg that left him limping.    Although


     8
       We express no opinion whether the evidence was sufficient
to support the animal cruelty charges, of which defendant was
acquitted by the judge.
     9
       The defendant's neighbor testified that in July, 2013, she
picked more than thirty ticks off the dogs and that the ticks
"were the size of [her] fingernails and bigger."
                                                                   12


the intervention of animal control led to Kenji's diagnosis and

the prescription of antibiotics and pain medication, because the

defendant was unable to administer the medication herself and

had not found anyone to do it for her, Kenji did not receive any

of his prescribed pills.    They remained unopened in the

condemned home.

    The evidence was more than sufficient to establish that the

dogs were subjected to "dangerous conditions" in violation of

§ 174E(f)(3).    Linda Brogden-Burns, Brewster's animal control

officer, testified that the defendant's house was overgrown on

the outside and so cluttered with boxes, books, and clothing on

the inside that it was difficult to walk.    A box in the house

had both an open container of old dog food and knives.      Brogden-

Burns noted that the yard was overgrown and that there were

metal parts, old lawn equipment, stools, and stacks of chairs by

the back door.    There was stagnant water in bowls.   Brogden-

Burns was specifically concerned about items in the yard that

posed a danger to the animals, including wires, shovels, and

other items that could fall on or otherwise hurt them.

    The judge could have inferred that the condition of the

house did not improve between the condemnation and the removal

of the dogs nearly a year later.    Brogden-Burns's observations

of the inside of the house were consistent from her first

inspection in December, 2012, through subsequent visits in
                                                                  13


March, 2013.10   Although there was testimony that there were

temporary improvements to the yard area, Nancy Ellis-Ice, the

director of Brewster's health department, testified that the

condition of the house was the same in April, 2013, as it had

been when it was condemned the previous August.

     In addition, although we do not read the statute as

requiring confinement generally, to the extent that "filthy and

dirty confinement" under § 174E(f)(1) was the specific example

of "cruel conditions" on which the judge focused, there was also

sufficient evidence under Latimore for the judge to infer that,

while the dogs could move in and out of the condemned house by

means of a broken latch on the back door, the dogs were in fact

confined to the defendant's house and fenced-in yard.   There was

overwhelming evidence that the area to which the dogs were

confined presented with every factor listed in § 174E(f)(1) as

constituting "filthy and dirty" conditions.   Retired Brewster

police Sergeant Steven Freiner testified that, as of April,

2013, there was a large amount of debris and trash inside and

outside the house as well as a foul smell of trash coming from

inside the house.   Allen Borgal, a lieutenant with the Animal

Rescue League of Boston and director of the Center for Animal

     10
       Brogden-Burns documented her December, 2012, inspection
and follow-up visits in April and July, 2013, with photographs
that were admitted in evidence. At least some of these
photographs were transmitted to this court and considered in the
resolution of this appeal.
                                                                   14


Protection, reported that the yard was overgrown, that no dog

feces had been picked up, and that the yard consequently smelled

like dog feces when he visited the property in July, 2013.

Brogden-Burns noted the generally filthy and dirty conditions in

the yard.   In addition, Zach's and Kenji's emotional health was

further compromised by being left alone virtually all day every

day.

                                    Judgments affirmed.
