Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-041

                                      DECEMBER TERM, 2016

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Lamoille Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Russell G. Goodell                                    }    DOCKET NO. 198-4-15 Lecr

                                                            Trial Judge: Dennis R. Pearson

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals from a superior court order that he repay a total of $3081 for the care of
two dogs following his conviction of two counts of cruelty to animals. Defendant contends that
the evidence did not support the award. We affirm.

        In April 2015, defendant was charged with six counts of animal cruelty, in violation of 13
V.S.A. § 352(4), which prohibits “depriv[ing] an animal . . . of adequate food, water, shelter, rest,
sanitation, or necessary medical attention, or transport[ing] an animal in overcrowded vehicles.”
In September 2015, pursuant to a plea bargain, defendant pled nolo contendere to two of the
charges concerning two dogs named Peanut and Reba, the other charges were dismissed, and
defendant received an aggregate sentence of three months to two years, all suspended, and was
placed on probation.

         Under 13 V.S.A. § 354(g)(1), a defendant convicted of animal cruelty “shall be required to
repay all reasonable costs incurred by the custodial caregiver for caring for the animal, including
veterinary expenses.” As the court here observed, the statutory presumption is that the defendant
will fully repay all such costs incurred, as Vermont law also provides: “If the Court does not order
a defendant to pay all the applicable costs incurred or orders only partial payment, it shall state on
the record the reasons for that action.” 13 V.S.A. § 353(b)(2). As the court here also noted, the
restitution provisions of the animal-cruelty statute stand apart from the general criminal restitution
statutes, and do not incorporate the requirement of findings concerning the “material loss” incurred
by the victim or the offender’s “current ability to pay,” as required under 13 V.S.A. § 7043(d)(2).
See State v. Eldredge, 2006 VT 80, ¶¶ 6-8, 180 Vt. 278 (noting that animal cruelty statutes “contain
their own specific provisions regarding repayment of costs” and holding that “[t]he plain meaning
of statutory language does not require the court to find an ability to pay before ordering defendant
to pay the reasonable costs of caring for [defendant’s] animals”).

        Following defendant’s plea, the court held a restitution hearing. The director of operations
for the Central Vermont Humane Society (CVHS) testified that CVHS paid $216 for the initial
veterinary care of Peanut, who also received ongoing shelter and treatment at CVHS for a period
of twelve days, for a total cost of $300. The director testified that costs incurred by CVHS for the
care and treatment of animals include animal-care personnel, a medical technician, medical
supplies, vaccinations, tick and parasite treatment, food, and general facility expenses, and that
CVHS charges $25 per day to defray costs. The director testified that boarding facilities in the
area typically charge $25 to $35 per day.

        In addition to the twelve days at CVHS, the director recalled that Peanut was also
compelled to spend an additional period of time in foster care “because of his medical condition
and potential of communicable diseases.” He was severely underweight and had skin conditions
which required “more intensive” foster care for nineteen days before he could be returned to the
shelter “healthy and adoptable.” The additional period in foster care was also necessary because
both dogs were very fearful and were not housebroken, and required time for training and slow,
positive behavioral reinforcement. The director testified that CVHS covers all the costs when a
dog is in foster care, not just food and basic supplies but also ongoing medical care and specialized
behavioral training, for which it also charges $25 per day. For Peanut, the additional cost of
nineteen days in foster care was $475. Together with the veterinary and shelter costs, the total
costs incurred for Peanut came to $991.

        Reba was placed in a shelter run by the North Country Animal League. North Country’s
manager testified that Reba required initial veterinary care costing $96 plus $140 for specific
medical supplies, and that she spent thirty days at the shelter before she was ready for foster care.
The manager explained that the average daily cost for the shelter to cover medical care and staff,
parasite control, flea treatments, heartworm tests, as well as basic food and supplies, was $70 per
day. Reba then spent an additional period of time in foster care for the same reasons as Peanut;
she was “incredibly unsocialized” and also dangerous, and required specialized care and training
before she could be returned to the shelter. The shelter provides all the necessary food, medical
treatment, and supplies for a dog while in foster care. The manager estimated that the specialized
foster care that Reba received would cost about $800 per week in a private facility, and recalled
that Reba remained in foster care for five or six months, but explained that the shelter was seeking
reimbursement for only thirty days.

        The court noted that North Country had not provided any reason why its per diem costs for
dogs at the shelter were substantially higher than those of CVHS, and found $35 per day to be
reasonable as the upper limit of the average boarding costs in the area. The court also awarded
costs for four weeks of foster care at $200 per week, a daily rate of $28.57 which the court noted
was comparable to the foster-care costs of Peanut. The total expenses for care and treatment of
Reba thus totaled $2090.

       The court found that the reasonable costs incurred by the custodial caregivers for Peanut
and Reba totaled $3081 ($991 plus $2090), and ordered defendant to repay that amount. This
appeal followed.

        As we observed in Eldredge, under the restitution provisions of the animal-cruelty statute
the “only discretion afforded to the trial judge was to determine which costs . . . were reasonable,”
a decision which we review solely for “abuse of discretion.” 2006 VT 80, ¶ 15. Here, defendant
maintains that the court abused its discretion in determining the reasonable costs incurred,
asserting that the “only actual expenditures” supported by the evidence were the veterinary bills
for Peanut and Reba, totaling $216 and $96 respectively, and the additional medical supplies for

       The court inexplicably awarded $144 for medical supplies rather than $140, which was
the amount specified by North Country’s manager. The judgment will be modified accordingly.
                                             2
Reba of $140. Defendant asserts that the balance of the award was improper because no specific
evidence was adduced relating the “actual” expenses incurred by Peanut and Reba to the average
costs for shelter and foster care specified by the shelter managers. We have held, however, that
an award of restitution does not required “mathematical certainty,” but only “a reasonable basis
for estimating the loss.” State v. May, 166 Vt. 41, 43-44 (1996). The testimony here by the shelter
managers outlining the various costs incurred in the care and treatment of dogs at the shelters and
in foster care, and the comparable fees charged by other facilities in the area, was sufficient to
provide a reasonable estimate of the costs incurred in providing care for Peanut and Reba in this
case. See State v. Driscoll, 2008 VT 101, ¶ 14, 184 Vt. 381 (holding that, although it amounted to
an “approximation,” court’s downward adjustment of fair market value of deer offered by owner
was sufficient to establish reasonable estimate for restitution award). Accordingly, we find no
abuse of discretion, and no basis to disturb the judgment.

       The judgment is affirmed, but the amount of the restitution award is reduced to $3077.



                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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