2021-0087, State of New Hampshire v. Kevin Butler

beyond a reasonable doubt. We affirm. that the evidence was insufficient to support a finding of criminal negligence of animal cruelty. See RSA 644:8 - aa (2016); RSA 644:8, III (2016). He asserts conviction after a bench trial in the C ircuit C ourt (Pendleton, J.) on two counts HANTZ MARCONI, J. The defendant, Kevin Butler, appeals his

for the defendant. Champions Law, of Portsmouth (Jared Bedrick, on the brief and orally),

and orally), for the State. general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief John M. Formella, attorney general, and Anthony Galdieri, solicitor

No. 2021 - 0087 7th Circuit Court - Rochester District Division

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

dog might still be in the car.” responded, “I don’t know.” The defendant then informed the officer that “the which the defendant responded “oh, sh*t” and called to his son, who the defendant in this case. He asked the defendant “wher e his dog was,” to Thereafter, the officer made contact with the registered owner of the vehicle, was parked in “direct sunlight” with “nothing that could provide it shade.” The officer observed that it was around 9 p. 2 2 degrees outside and that the car clinic for treatment, a Rochester police officer arrived on scene to investigat e. After the animal control officer had transported the dog to the veterinary

care. after which the dog was tran sferred to a veterinary hospital to receive p. 2 24 - hour the dog for around a half an hour, until she “got the temperature down to 103,” possible focal seizure activity occurring.” The veterinarian continued treating intra venous valium because [the providers] did note that there was some [to] assess if there was any current organ damage,” and “gave some catheter so that [the providers] could start running fluids,” “[t]ook some blood cloths and wraps around the feet and body.” In addition, she “put in an IV was over 105 degrees. She immediately began treati ng the dog “with cold was h distressed and in shock.” The veterinarian took the dog’s temperature, which At the clinic, the veterinarian observed that the dog was “[o]bviously,

control officer then took the dog to a veterinary clinic in Rochester. the dog remained “unresponsive” and was “panting heavily.” T he animal inside her truck, which was air - conditioned. Once inside the officer’s truck, “pa nting heavily and unaware.” T he officer picked up the dog and secured it outside.” At this point, the animal control officer observed that the dog was unlocked car door, she observed that “it was hotter inside the car than underneath the steering wheel.” When the animal control officer opened the side door,” and while she was parking “the do g slid[] off the seat and When the officer arrived she observed “a dog in a vehicle up against the driver’s An animal control officer for the City of Rochester responded to the call.

“afraid for the dog,” so she called the police. in the car because it was that hot with all the windows. . . closed.” She w as 90 degrees outside and the neighbor believed that the “dog shouldn’t have been “scratching at the windows and the door.” The temperature was greater than dog remained in the vehicle. The dog appeared to be in distress and was Civic. After 45 minutes to an hour, the neighbor returned and noticed that the her apartment to run errands when she noticed a dog inside a parked Honda following facts. On July p. 2 20, 2020, one of the defendant’s neighbors was leaving Based on the record before us, the trial court could have found the

168 N.H. 67 p. 3 3, 677 (2016). In such a challenge, we objectively review the record to the State, could have found guilt beyond a reasonable doubt. State v. Cable, evidence and all of the reasonable inferences from it in the light most favorable defendant must demonstrate that no rational trier of fact, viewing all of the To prevail upon a challenge to the sufficiency of the evidence, the

other elements are uncontested. establish the requisite mens rea of criminal negligence for both charges. All On appeal, t he defendant asserts that the evidence was insufficient to

animals under RSA 644:8, III. of cruelty to animals pursuant to RSA 644:8 - aa and one count of cruelty t o car. The following day, the defendant was arrested and charged with one count that he did not know, the defendant realized that the dog must still be in the said “oh, sh*t” and asked his son where the dog was. When his son responded When the police asked him where his dog was, the defendant testified that he phone call, he went into his living room, when he heard the police at his door. “assumed that he had . . . brought the dog with him.” After he concluded the the defendant testified that he heard his elder son come into the house and bedroom . . . and [he] closed the door.” About 25 minutes into the phone call, waiting almost six months” to receive. He took the call and “stepped into the A fter calming his younger son, he received a phone call that he “had been younger son. He did not observe his elder son remove the dog from the vehicle. he went upstairs to put his groceries away, when he was distracted by his The defendant testified that, after asking his son to let the dog out of the car, elder son’s responsibility to get the dog “in and out of the car on most days.” would frequently ride in the car with him and his children, and that it was his full,” so he asked his son to get the dog out of the car. He testified that the dog dog in the car. When he returned from running errands, “[his] hands were off the inside” and “once [he] determined that it was cool enough,” he put the before going to the store, he “pre - started [his] car t o let the air conditioner cool that the weather on July p. 3 30, 2020 “was very hot outside.” That morning, At trial, the defendant was the sole witness for the defense. He testified

an hour.” confirmed with the officer that the dog had been in the vehicle “[a]pproximately asked his 8 - year - old son . . . to bring the dog in.” The defendant also that he had “been out on some errands” and “[h]is arms were full[,] so [he] the officer ask ed the defendant what happened. The defendant told the officer concerned about the damage, “he was concerned about his dog.” At that point, biting at the interior. The defendant informed the officer that he was n o t the officer pointed out damage to the car caused by the dog scratching and The officer and the defendant went down to the defendant’ s vehicle where p. 4 4

perception. Id. determined by an objective test, not by reference to the defendant’s subjective defendant failed to become aware of a substantial and unjustifiable risk is risk must have been a gross deviation from reasonable care. Id. Whether the must have been substantial and unjustifiable, and the failure to perceive that serious than that for ordinary civil negligence. Id. at 351. The risk involved (2005). The carelessness required for c riminal negligence is appreciably more establishes only ordinary negligence. State v. Littlefield, 152 N.H. 331, 35 0 charged with criminal negligence may not be convicted on evidence that observe in the situation.” RSA 626:2, II(d). We have held that a person constitutes a gross deviation from the condu ct that a reasonable person would must be of such a nature and degree that his failure to become aware of it the material element exists or will result from his conduct,” and “[t]he risk defendant “fail[ed] to become aware of a substantial and unjustifiable risk that In order to establish criminal negligence, the State must prove that the

likewise requires the S tate to prove criminal negligence. misdemeanor as set forth in RSA 6 p. 4 44:8.”), we conclude that RSA 644:8 - aa 644:8 - aa, II (“Any person in violation of this section shall be guilty of a sentencing scheme for both misdemeanor convictions is identical, see RSA (h) requires the State to prove criminal negligence, and given that the established for simil ar forms of animal cruelty convictions in RSA 644:8, III(a) respect to each material element of the offense.”). Given that the mens rea purposely, knowingly, recklessly or negligently, as the law may require with 626:2, I (2016) (“A person is guilty of . . . a misdemeanor only if he acts v. Mandatory Poster Agency, Inc., 168 N.H. 287, 291 (2015); see also RSA and the policy considerations for punishing the conduct in question. See State culpable mental state that is appropriate in light of the nature of the offense provide for a specific mental state, we read the statu te as requiring proof of a is also criminal negligence. We, too, agree. When a criminal statute does not that the appropriate mens rea for a misdemeanor conviction under the statute negligence. A lthough RSA 644:8 - aa is silent as to mens rea, the parties agree misdemeanor charge of animal cruelty under RSA 644:8, III is criminal harm to the animal.” The mens rea that the State is required to prove for a . . . in which th e temperature is either so high or so low as to cause serious aa, which states, “[i] t shall be cruelty to confine an animal in a motor vehicle possession or custody necessary care, sustenance or shelter,” and RSA 644:8 authority negligently deprives or causes to be deprived any animal in his states, “[a] person is guilty of a misdemeanor. . . who: (a) [w]ithout lawful The State charged the defendant under both RSA 644:8, III (a), which

review is de novo. Id. the sufficiency of the evidence raises a claim of legal error, our standard of elements of the crime beyond a reasonable doubt. Id. Because a challenge to to determine whether any rational trier of fact could have found the essential p. 5 5

the incident when confronted by the police after the fact. The def endant was the substantial and unjustifiable risk to the dog for an hour — only learning of Shepard, 1 p. 5 58 N.H. at 745, the defendant in this case failed to become aware of Shepard, who “strayed over the yellow line for approximately two seconds,” conclusion that the defendant was merely inattentive. Unlike the defendant in not sufficient to establish criminal negligence, the record does not support a inattention” in failing to beco me aware of a substantial and unjustifiable risk is assuming, without deciding, that Shepard stands for the proposition that “mere inattention” was not sufficient to establish criminal negligence. Even 158 N.H. 743 (2009), to support his position that the defendant’s “mere Before concluding, we note that the defendant relies on State v. Shepard,

677. trier of fact could have come to the same conclusion. See Cable, 168 N.H. at in the light mos t favorable to the State, we cannot conclude that no rational from reasonable care. Based on the record before us, and viewing the evidence acute threat to the health and safety of the dog — constituted a gross deviation failure to supervise the 8 - year - old under the se circumstances — i.e., a known, vehicle over the prior eight months, it could have reasonably concluded that the defendant’s testimony that his 8 - year - old had reliably let the dog out of the he had been expecting for months. Even if the trial court were to have credited done in the past, became distracted by his younger son, and t ook a phone call year - old son to get the dog out of the car, which the 8 - year - old had reliably become aware that the dog remained in the vehicle because he asked his 8 deviation from reasonable care. Id. The defendant testified that he failed to become aware of the substantial and unjustifia ble risk constituted a gross Next, t he record supports the conclusion that the defendant’s failure to

car. and waiting until the car was “was cool enough” before putting the dog in the heat could be dangerous for the dog by taking steps to cool down his vehicle the weather was “very hot outside.” He demonstrated that he was aware the risk when he testified that, p rior to putting the dog in the car, he noticed that Indeed, the record reflects that the defendant himself was aware of the

would dangerously overheat if left in the vehicle. See i d. established that there was a substantial and unjustifiable risk that the dog exterior, and the dog was left in the vehicle for around an hour. T his evidence shade and the windows up. The interior of the car was much hotter than the day was in excess of 90 degrees. The car was parked in direct sunlight with no that the risk to the dog was substantial and unjustifiable. The weather that gross deviation from re asonable care. First, t he record supports the conclusion would overheat in the car and that his failure to perceive this risk constituted a failed to become aware of a substantial and unjustifiable risk that the dog Here, the record supports the trial court’s conclusion that the defendant p. 6 6

concurred. M AC DONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ.,

arguments on this point unpersuasive. does not constitute “mere inattention.” For this reason, we find the defendant’s gros s deviation from reasonable care under the circumstance s, and, therefore, above, a rational trier of fact could have concluded that this reliance was a care to an 8 - year - old and failing to confirm its removal from the car. As stated not merely inattentive, but rather created the risk to the dog by e ntrusting its