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15-P-155                                            Appeals Court

            COMMONWEALTH    vs.   STANLEY F. SZEWCZYK.


                           No. 15-P-155.

       Hampshire.       December 14, 2015. - July 14, 2016.

            Present:    Grainger, Hanlon, & Agnes, JJ.


     Dog.   Animal.    Practice, Criminal, Findings by judge.



     Complaint received and sworn to in the Northampton Division
of the District Court Department on June 10, 2014.

    The case was heard by Jacklyn M. Connly, J.


     Thomas P. Vincent for the defendant.
     Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.   After a jury-waived trial in the District

Court, the defendant was convicted of one count of cruelty to an

animal in violation of G. L. c. 272, § 77.    He now appeals,

arguing that the judge erred in denying three of his eleven
                                                                   2


requests for rulings of law, pursuant to Mass. R. Crim. P. 26,

378 Mass. 897 (1979).1   We affirm.

     Background.   The judge heard the following facts.   Amy

Lovell moved with her partner and two children to a new home in

Hatfield in October, 2013; the family planned to farm.    The farm

was also home to a cat, ten goats, approximately twenty-five

chickens, and a sheepdog named Kiera.   On January 26, 2014,

Lovell noticed that Kiera, who had been tied with a nylon leash

to the woodshed in Lovell's yard, had chewed through the leash

and wandered off the property.2   Lovell and her partner got in


     1
       The rule provides: "Requests for rulings in the trial of
a case shall be in writing and shall be presented to the court
before the beginning of closing arguments, unless consent of the
court is given to present requests later."
     2
       On three prior occasions, Kiera had gotten loose from
Lovell's property and wandered onto the defendant's property
across the street and two houses down from the farm. The first
time Kiera got loose was soon after Lovell's family arrived;
while they were unpacking, one of the children had left a door
open. The defendant returned the dog that time. He "appeared
on [Lovell's] doorstep, very angry, holding [her] dog by [the]
collar;" he yelled at Lovell for letting her dog run loose,
telling her that the town had a leash law. He refused to accept
Lovell's apology. Within a few days, Kiera got loose again;
that time the defendant returned Kiera, "dragging her by the
collar back, and just walked right into [Lovell's] house"
without knocking. Again, Lovell apologized and explained that
her family had just moved in; that they were getting settled and
were planning to put up a fence. Approximately one week later,
the dog got loose a third time from a dog run in Lovell's back
yard. Lovell was returning home when she saw Kiera in front of
the defendant's house; Lovell stopped her truck and the dog
hopped in. Before Lovell could drive on, the defendant "ran out
of his house and ran in front of [her] car, and stopped in a
very aggressive stance, sort of . . . like a wrestler."
                                                                      3


their truck to search for the dog; they found her a short

distance away standing uncharacteristically still in the middle

of the street in front of the defendant's house.3   When they

drove up, Lovell noticed the dog was holding up her hind leg.

Whereas, normally, she would have jumped into the truck, this

time, she had to be lifted into the truck to be brought home.

Once there, Lovell noticed drops of blood on the kitchen floor

and, when she looked closer, she found a small, round hole in

the dog's hind leg with blood coming from it.   The dog whined

and tried to lick the wound and was unable to walk.

     The next day, Lovell brought the dog to a veterinarian.     An

X-ray showed a pellet lodged deep in the dog's left flank, very

close to the bone.   The dog was returned to the veterinarian two

days later for surgery to remove the pellet; the doctor halted

the surgery after deciding that to continue would risk further

nerve damage.   The veterinarian referred Lovell to a surgeon.

The surgeon also determined that surgery would be too risky, and

the pellet remained in the dog's leg.   The dog was given pain



According to Lovell, "he was instantly red in the face,
screaming at [her] and he said, "if I see her loose again, I
will shoot her dead." As noted, each of these three incidents
occurred in late October or early November; there were no
further incidents until the one at issue, approximately two
months later.
     3
       This breed of dog is generally known as a livestock
guardian; its normal behavior is to be constantly "scoping,
getting a lay of the land" not staying still.
                                                                    4


medication for about one week after the visit.    The surgeon

opined that "even though the dog wasn't complaining, I'm sure

that it hurt from having the pellet in the leg and from the

surgery."

     For the next week, Lovell kept the dog in the house, rather

than outside in the barn; the family brought her food to her

because "she was unable to walk.    She remained [lying] down for

the next week."   The dog showed "great pain" and the injury was

"very much bothering her"; she was "up all night whining for

days."    As a result of the injury, the dog has a permanent limp

although she can still perform her function of guarding the

family's livestock.

     The defendant testified that, when he saw the dog in his

yard for the fourth time, he shot her with a .22 caliber air

powered pellet gun, from a distance of about fifty to sixty feet

away.    He hit the dog with one shot exactly in the spot where he

aimed, in an attempt to "sting" her and scare her from his yard.

He did not call the town dog officer.4   The defendant testified

that, while the dog was not aggressive in any way, he shot her

in an attempt to protect his wife, who suffered from multiple

sclerosis.   He stated that, because of his wife's medical

condition, she has difficulty lifting her feet up and, instead,


     4
       The defendant testified that he had previously called the
town animal control officer when Kiera was on his property.
                                                                      5


slides her feet when she walks; if she lifts her feet "it's just

as likely she's going to fall to one side or the other."     The

defendant had used a snow blower to create paths in the snow so

that his wife could exercise, but he was concerned that dog

feces on the paths might make it difficult for her to do that;

photographs of feces in the defendant's yard were admitted in

evidence.   The defendant's wife had fallen a number of times in

the time leading up to the incident, although there was no

evidence that any of her falls were related to dog feces.       In

addition, at some point after the incident, the defendant left a

message on Lovell's telephone voicemail, apologizing for

shooting the dog and offering to pay the medical bills.

    At the close of evidence, the defendant submitted a written

request for rulings pursuant to Mass. R. Crim. P. 26.     The judge

accepted rulings numbered one through eight, but denied rulings

numbered nine through eleven.    At the end of the trial, the

judge found the defendant guilty, and ordered, among other

things, that the defendant be placed on administrative probation

and pay restitution for the cost of the veterinarian expenses.

    Discussion.     The defendant's principal argument is that, in

shooting the dog, he "pursued a lawful purpose and his intent

was justifiable."    If so, he contends, "his actions do not fit

within the definition of 'cruelty' in G. L. c. 272, § 22."       He

also argues that three of his requests for rulings of law,
                                                                     6


numbered nine, ten and eleven were wrongfully denied.     The three

requests at issue were:

     "9. The defendant's purpose, to scare the dog off his
     property and to discourage its return, is a lawful
     purpose.

     "10. The defendant's intent to ensure his wife's
     safety from falls due to the dog's presence on the
     property was justifiable in light of his wife's
     vulnerability caused by her medical condition.

     "11. The pain inflicted by    the defendant shooting the
     dog in the rump once with a   pellet gun from a distance
     of about [fifty] feet for a   lawful purpose and with
     justifiable intent does not   fit within the meaning of
     'cruel' under G. L. c. 272,   § 77."

     Requests for rulings under rule 26 are applicable to jury-

waived trials in the District Court.5   They are "intended to

secure for the purpose of review a separation of law from fact

in cases where the trial judge acts both as factfinder and

applier of law."   Commonwealth v. Kingston, 46 Mass. App. Ct.

444, 448 (1999), quoting from Reporters' Notes to Rule 26, Mass.

Ann. Laws, Rules of Criminal Procedure, at 441 (Law. Co-op.

1979). See also Reporters' Notes to Rule 26, Mass. Ann. Laws,

Rules of Criminal Procedure, at 1627 (Lexis Nexis 2015)

(Reporters' Notes).   Although case law regarding requests for

rulings of law generally has arisen in the context of civil

litigation, the rule also applies to criminal cases.    Reporter's

     5
       Rule 26 also applies to jury-waived trials in the Superior
Court, the Boston Municipal Court, and all delinquency and
youthful offender proceedings in the Juvenile Court. Cypher,
Criminal Practice & Procedure § 38:1 (4th ed. 2014).
                                                                     7


Notes to Rule 26.    See Cypher, Criminal Practice & Procedure

§ 38:3 (4th ed. 2014) (Cypher).    Rule 26 requests are to be made

for rulings of law only, and the judge is not required to honor

requests for findings of fact.    See Stella v. Curtis, 348 Mass.

458, 461 (1965); Reporter's Notes, supra.    See also Cypher,

supra at § 38:6.    "The request is a request for a finding of

fact if it calls for the application of the reasoning powers of

the judge as to the facts or involves weighing of evidence."

Ibid.    Cf. Davis, Malm, & D'Agostine, P.C. v. Lahnston, 82 Mass.

App. Ct. 254, 258 (2012).

     In this case, each of the first eight rulings stated

principles of law, with citations to supporting case law.6


     6
         The first eight requests were:

     "1. Cruelty as used in G. L. c. 272, § 77, is 'severe pain
     inflicted upon an animal . . . without any justifiable
     cause.' Commonwealth v. Zalesky, 74 Mass. App. Ct. 908,
     909 (2009), quoting Commonwealth v. Lufkin, [7 Allen] 579[,
     581] (1863).

     "2. Proof of cruelty is accomplished if the evidence shows
     that the [d]efendant 'intentionally and knowingly did acts
     which were plainly of a nature to inflict unnecessary
     pain.' Zalesky, [supra] at 909.

     "3. The motive of intending to inflict injury or suffering
     is not, by the terms of the statute, made an essential
     element of the offence. Lufkin, [supra] at 581.

     "4. Other cases, suggested in Lufkin[, supra] at 581,
     where no purpose of 'the gratification of a malignant or
     vindictive temper' is shown to exist, but are within the
     'intent as well as the letter of the law,' are: 1) 'cruel
     beating or torture for the purpose of training or
                                                                   8


Requests numbered nine through eleven do not state principles of

law; each of those requests is a summary of the facts argued by

the defendant in his defense.   Because the judge has broad

discretion in instructing on the law of the case, we consider

whether the judge abused her discretion in striking rulings


    correcting an intractable animal;' 2) 'pain inflicted in
    wanton or reckless disregard of the suffering it occasioned
    and so excessive in degree as to be cruel;' and 3) 'torture
    inflicted by mere inattention and criminal indifference to
    the agony resulting from it, as in the case of an animal
    confined and left to perish from starvation . . . .'
    Lufkin,[supra].

    "5. The pertinent language of G. L. c. 272, § 77, for this
    case reads as follows: 'Whoever . . . cruelly beats . . .
    an animal, or causes . . . an animal to be . . . cruelly
    beaten . . . shall be punished.'

    "6. The motive of a person who inflicts pain on an animal
    may be material to the issue of whether the acts of the
    defendant are criminal. Lufkin, [supra] at 582.

    "7. 'Pain inflicted for a lawful purpose and with a
    justifiable intent, though severe, does not come within the
    statute meaning of "cruel."' If one drives 'a horse at a
    rate of speed most distressing to the brute, when the
    object is to save human life, for example, or to attain any
    other object of adequate importance, may yet be lawful.[']
    Lufkin, [supra].

    "8. The Town of Hatfield By-Laws, §2.07: Dog Regulations,
    states:

         "'a) No person shall allow a dog of which he is owner
         or keeper:

         "'i. to go beyond the confines of his property unless
         the dog is held firmly on a leash;

         "'ii. by biting, barking, howling, or in any other
         manner to disturb the peace or quiet of any
         neighborhood or endanger the safety of any person.'"
                                                                      9


numbered nine, ten, and eleven.    See Commonwealth v. Williams,

53 Mass. App. Ct. 719, 720 (2002).    Compare Commonwealth v.

Saletino, 449 Mass. 657, 667 (2007) ("decision whether to

provide a missing witness instruction to the jury is within the

discretion of the trial judge, and will not be reversed unless

the decision was manifestly unreasonable").

    Here, we are satisfied that each of the requests for

rulings denied by the judge was a request for a finding of fact,

calling upon the judge as factfinder to weigh the evidence

presented at trial.     Such rulings are clearly outside the scope

of rule 26, and the judge did not abuse her discretion in

denying them.   See Cypher, supra at § 38:6.    See also Williams,

supra.

    We next consider the evidence, "together with permissible

inferences from that evidence, in the light most favorable to

the Commonwealth, to 'determine whether any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt.'"     Commonwealth v. Walker, 68 Mass. App. Ct.

194, 198 (2007), quoting from Commonwealth v. Cordle, 412 Mass.

172, 175 (1992).    "The governing statute, G. L. c. 272, § 77, as

appearing in St. 1977, c. 921, § 2, provides:     'Whoever . . .

cruelly beats, mutilates or kills an animal . . . shall be

punished . . . .'   'Cruelty in this context is "[s]evere pain

inflicted upon an animal . . . without any justifiable cause.'
                                                                     10


Commonwealth v. Lufkin, 7 Allen 579, 581 (1863)."     Commonwealth

v. Linhares, 80 Mass. App. Ct. 819, 823-824 (2011).

    "'Specific intent to cause harm is not required;

"decisional law makes clear that in circumstances involving the

direct infliction of pain on an animal all that must be proved

is that the defendant 'intentionally and knowingly did acts

which were plainly of a nature to inflict unnecessary pain.'"

Commonwealth v. Erickson, [74 Mass. App. Ct.] 172, 177 (2009),

quoting from Commonwealth v. Magoon, 172 Mass. 214, 216 (1898).'

Commonwealth v. Zalesky, 74 Mass. App. Ct. 908, 909 (2009).

'The defendant's guilt did not depend upon whether he thought he

was unnecessarily cruel, but upon whether he was so in fact.'

Commonwealth v. Magoon, supra."    Commonwealth v. Linhares, supra

at 824.

    In this case, the defendant testified that he intended to

shoot the dog and, in fact, hit her exactly in the spot where he

aimed.    Whether the defendant intended only to "sting" the dog

in order to discourage her return to the defendant's property is

immaterial.   See Commonwealth v. Erickson, supra at 177

(necessary that the defendant "intended the act to occur which

constitutes the offense").    Shooting the dog and having the

pellet lodge in her hind leg, deep into the muscle and close to

the bone, unnecessarily, and unjustifiably, caused severe pain

to the animal to the point where she was unable to walk, was
                                                                  11


kept up at night for several days whining, remained lying down

for a week, with her food brought to her, and required

confinement to the house for approximately months until she had

recuperated fully.   In addition, although it was unsuccessful,

the dog required surgery, was given pain medication, and still

has a limp, all as a consequence of the defendant's admitted

actions.

    While the defendant's concern for his wife's safety is

understandable, even admirable, he had legal alternatives to

shooting the dog, including monitoring his property for animal

feces when his wife was planning to walk, and calling the town

dog officer, as he had done before.    In addition, as he

testified, he aimed and fired directly at the dog, hitting her

in precisely the spot he intended.

    On these facts, we are satisfied that the judge reasonably

could have found that the defendant "intentionally and knowingly

did acts which were plainly of a nature to inflict unnecessary

pain, and so were unnecessarily cruel."    Commonwealth v.

Zalesky, supra at 909.

                                     Judgment affirmed.
