Board of County Commissioners v. Winter

966 P.2d 675, 25 Kan. App. 2d 508, 1998 Kan. App. LEXIS 108
CourtCourt of Appeals of Kansas
DecidedJuly 24, 1998
DocketNo. 79,116
StatusPublished

This text of 966 P.2d 675 (Board of County Commissioners v. Winter) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of County Commissioners v. Winter, 966 P.2d 675, 25 Kan. App. 2d 508, 1998 Kan. App. LEXIS 108 (kanctapp 1998).

Opinion

Pierron, J.:

Dee Winter appeals her convictions of seven counts of cruelty to animals pursuant to Sedgwick County Code § 5-191(a)(3). Winter argues there was insufficient evidence to support her convictions. She also argues the use of the word “and” in Sedgwick County Code § 5-191(a)(3) requires proof of failure to provide food, potable water, protection from the elements, opportunity for exercise and other needed care in order for someone to be convicted of cruelty to animals.

Due to the nature of this appeal, we will set out the underlying facts in detail.

On August 22, 1996, Sherdeill Breathett, Director of the Sedgwick County Animal Control, inspected a dog kennel operated by Winter. Breathett found 7 dogs housed in outdoor dog pens and [509]*50917 dogs living inside Winter’s house. Winter was not present during the inspection and the dogs were in the care of Winter’s mother. Breathett’s inspection lasted approximately 45 minutes, of which approximately 10 minutes were captured on videotape.

Breathett testified the drinking water in the outdoor dog pens was not clean. This conclusion was based on the color of the water and bugs in the water thought to be maggots. Breathett concluded the water was not drinkable for the dogs. He also testified the pens were unclean and had fecal matter built up inside. He indicated there was high grass surrounding the dog pens and no pathway to the pens. He stated that if the animals were being given proper care, there would be a pathway due to the traffic.

Based on the condition of the water in the drinking bowls, the fecal matter in the pens, and the high grass surrounding the pens,' Breathett opined that Winter did not make proper provisions for the care of the dogs. Winter was charged with 24 counts of cruelty to animals, 15 counts of failure to show a dog license, and 15 counts of failure to show a dog vaccination certificate or veterinarian’s confirmation. Winter was convicted of 20 counts of cruelty to animals and all the other charges. She only appealed the convictions for cruelty to animals to the district court.

The district court held a trial de novo. Breathett testified about his inspection of the kennel and the videotape. Winter testified she had raised and shown dogs for 20 years. She has also held various positions in the South Central Kansas Kennel Club.

Winter testified that in August 1996, there had been unusually heavy rain and she had trouble keeping the grass mowed around the outdoor pens. She said it was very muddy, the grass grew ex-, tremely fast, and she had trouble with her lawn mower. Winter stated she normally cleans the outdoor kennels three times a week and during those times, the dogs are allowed to run loose in her fenced-in back yard. She said she had not cleaned the pens before the inspection because the rain and humidity had given her an asthma attack.

Winter said she normally gives the dogs fresh water eveiy day. But, again because of the rains and her health problems, she was unable to water the dogs every day. However, she claimed she [510]*510checked to make sure that all of the dogs had water. Winter said the only problem she has had with insects in the drinking bowls has been with mosquito larvae, never maggots.

Joyce Reed testified she breeds and sells dogs and had known Winter for 15 years. She testified that during summer, she also had problems with grass and mosquito larvae getting into the dogs’ drinking water. Patty Sthole testified she had known Winter for 5 years and had purchased a crate-trained puppy from her. Sthole said the dog showed no signs of mistreatment.

Dr. Reed Harrison, a veterinarian, testified that Winter had been his client for several years. Harrison had previously reviewed the videotape of Breafhett’s inspection and concluded there was no evidence the dogs had been abandoned, neglected, or not provided food, water, and adequate shelter. Harrison testified that the insects in the drinking water were probably mosquito larvae and that the water had been there for 24 - 48 hours. He stated that mosquitos can carry heartworms to dogs; however, the mosquito larvae do not present an immediate threat. He opined that all the conditions relied on by Breafhett did not indicate that the dogs had been neglected or not properly cared for.

The district court upheld Winter’s convictions for seven counts of cruelty to animals for the seven dogs in the outside pens. The court found the dogs did not have potable water and did not have adequate opportunity for exercise. The court stated the water was under no circumstances adequate for the dogs to drink.

Winter argues there was insufficient evidence to support her convictions for cruelty to animals.

When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, Syl. ¶ 5, 940 P.2d 27 (1997).

Winter contends there was no expert testimony presented at trial that established the water in the dogs’ drinking dishes was not suitable for drinking. There were no scientific tests conducted, and the only evidence was the visual observations of Breathett. Winter [511]*511argues she presented expert testimony from a veterinarian that the bugs in the water were mosquito larvae which presented no immediate threat. She also contends there was no evidence the dogs were dehydrated or denied water. Winter claims the law requires the county to present proof that the drinking water was not potable, rather than merely offering evidence of an inspection by a county animal control official.

Winter also contends there was no evidence the dogs in the outside pens did not have adequate exercise. She cites the veterinarian’s testimony that it is not harmful for the dogs to remain in kennels for 3 continuous days. Winter claims the county’s charge of inadequate exercise only applied to the dogs in the inside pens.

Sedgwick County Code § 5-191(a)(3) defines cruelty to animals in the following manner: “Having physical custody of any animal and failing to provide such food, potable water, protection from the elements, opportunity for exercise and other care as is needed for the health or well-being of such kind of animal.”

The district court weighed the testimony of Breathett and Harrison. The court gave greater weight to Breathett’s testimony because he did the inspection and he observed the conditions in person. Winter would have us reweigh this testimony and side with Harrison that the evidence did not indicate the dogs had been neglected. We are prohibited from doing so.

“An appellate court does not reweigh the testimony or pass on the credibility of witnesses but accepts as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court and disregards any conflicting evidence or other inferences that might be drawn therefrom.” State v. Orr, 262 Kan. 312, Syl. ¶ 5, 940 P.2d 42 (1997).

There is sufficient evidence to support Winter’s convictions.

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Related

State v. Le
926 P.2d 638 (Supreme Court of Kansas, 1996)
State v. Orr
940 P.2d 42 (Supreme Court of Kansas, 1997)
State v. Claiborne
940 P.2d 27 (Supreme Court of Kansas, 1997)
City of Olathe v. Board of Zoning Appeals
696 P.2d 409 (Court of Appeals of Kansas, 1985)
State v. Cole
710 P.2d 25 (Supreme Court of Kansas, 1985)
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939 P.2d 904 (Supreme Court of Kansas, 1997)
State v. REED, SR.
934 P.2d 157 (Court of Appeals of Kansas, 1997)
In re Zivanovic
929 P.2d 1377 (Supreme Court of Kansas, 1996)
In re the Appeal of Boeing Co.
930 P.2d 1366 (Supreme Court of Kansas, 1997)

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Bluebook (online)
966 P.2d 675, 25 Kan. App. 2d 508, 1998 Kan. App. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-county-commissioners-v-winter-kanctapp-1998.