People v. Cruz

Opinion

FILED SUPERiOR COURT 1 OF ~UAH

2 2019FEB Ii PM 1~5~ C11RKO~URT

7 IN THE SUPERIOR COURT OF GUAM 8

~ PEOPLE OF GUAM,

10 Plaintiff, Criminal Case No. CF0619-18

11 vs. DECISION AND ORDER 12 GERALD WAYNE CRUZ II, 13 aka Gerard Wayne Cruz II,

14 Defendant.

16 INTRODUCTION

17 Defendant is charged with two felony counts for shooting a neighbor’s dog and a

18 neighbor’s cat. He moves to dismiss these charges on the basis that the indictment fails to allege 19 facts that would support the charges. This matter is before the Honorable Michael J. Bordallo. 20 The People are represented by Assistant Attorney General Charles J. Kinnunen. Defendant 21

22 Gerald Wayne Cruz II (“Defendant”) is represented by Assistant Public Defender William C.

23 Bischoff of the Public Defender Service Corporation. Having reviewed the arguments, the Court

24 GRANTS Defendant’s motion to dismiss the charges of two counts of Animal Cruelty (As a 31C1

25 Degree Felony).

26 Page lof5 1 BACKGROUND

2 An indictment was originally issued agaihst Defendant in October 2018, but t*o months

~ later, a superseding indictment was issued on Dec. 13, 2018, charging him with two counts of

Animal Cruelty (As a Third Degree Felony), each with accompanying counts of Special 5 Allegation of Possession or Use of a Deadly Weapon in the Commission of a Felony. He was 6 also charged with Unsworn Falsification, a misdemeanor. The felony charges are based on 7 violations of 9 G.C.A. § 70.10.1(a)(1) (which is entitled Animal Abuse, not Animal Cruelty, as 8 incorrectly stated in the indictment). Defendant moved for dismissal of the felony portion of the

10 indictment on Dec. 27, 2018. The People did not file an opposition. This Court then took the matter under advisement.

12 - FACTS

13 1. Defendant is accused of shooting and killing a neighbor’s cat in May 2018 and a

14 neighbor’s dog in September 2018.

2. The People have charged him with Animal Cruelty (As a 3rd Degree Felony), meaning 16 that he is charged with intentionally, knowingly, or recklessly causing serious physical

17 injury to the animals, cruelly causing their death, or torturing them. 9 G.C.A. §

18 70.10.1(a)(1). 19 3. Defendant argues that the indictment is deficient because it states only that he shot the 20 animals, not that he cruelly killed them or tortured them, as required to violate § 70.10.1. 21 ISSUE 22

23 ~ Whether to dismiss the felony charges in the superseding indictment for failing to allege

24 facts that support the charges.

Page 2 of 5 1 PRINCIPLES OF LAW

2 A person is guilty of first degree animal abuse if he intentionally, knowingly, or

~ recklessly causes serious physical injury to an animal,. cruelly causes its death, or tortures it. 9

G.C.A. § 70.l0.l(a)(l). First degree animal abuse is a third-degree felony. Iç~ at (b). Torture is 5 an action taken “for the pnmary purpose of inflicting pain.” j~ at § 70.0 1(i). “Animal” in these 6 statutes means a domestic animal or a household pet. Id. at (a). Guam statute does not define 7 “cruelly” or “cruelty,” but Black’s Law Dictionary defines “cruelty” as “The intentional and 8 malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive 9 -

treatment; outrage.” Cruelty, Black’s Law Dictionary (10th ed. 2014), available at Westlaw.

The Supreme Court of Guam has stated that an indictment is sufficient if “it contains the

12 elements of the crime alleged.” Guam v. Jones, 2006 Guam 13 ¶ 12. It also states, “[A] well

13 drafted indictment would clearly lay out all of the elements of the crime.” j~ at ¶ 20.

14 ANALYSIS

15 The statute Defendant is alleged to have violated does not concern whether he killed the

16 animals but whether he killed them cruelly. Serious physical injury is not at issue here because

Defendant is accused of killing the animals, not just creating a substantial risk of their deaths or 18 otherwise physically harming them. $ç~ 9 G.C.A. § 70.01(h). Torture is also not at issue

19 because Defendant is not accused of having the primary purpose of inflicting pain. See Id. at (i). 20 The question is whether Defendant cruelly caused the death of the dog and cat. 21 It is difficult to think of a less cruel way to kill an animal than death by gunshot. If 22

23 Defendant were accused of shooting to maim or shooting to injure the animals, the case might

24 be different. But the indictment accuses him only of “shooting a dog” and “shooting a cat.”

25 Superseding Indictment 2. The Magistrate’s Complaint states that Defendant shot the cat, threw

26 its body in his truck, and drove off. Magistrate’s Complaint 3. Apparently the cat died V Page3of5 1 immediately, and the indictment offers no facts that either the cat or dog suffered before dying

2 or that Defendant intended that they suffer. The indictment also does not say that Defendant

~ intentionally inflicted mental or physical suffering on the animals, as required by the Black’s

Law definition of cruelty. 5 Defendant cites a Pennsylvania case that is similar to this case: Commonwealth v. 6 Ulrich. In that case, the defendant shot and killed a dog on his farm out of fear the dog would 7 harm his calves. Commonwealth v. Ulrich, 1999 PA Super. 1071. The Superior Court of 8 Pennsylvania, an intermediate appellate court, declined to find that this shooting was cruelt-y to

10 animals, absent additional abuse. Id. The defendant shot the dog once and then the dog ran off. The defendant followed it and shot it three more times before it died. Defendant was charged

12 and convicted for cruelty to animals under Pennsylvania law. On appeal, the court stated that

13 “Appellant’s crime, if any, was his intentional killing of a domestic animal not his own. The

14 crime he was charged with under 18 Pa.C.S.A.~ 5511(c), however, is inapplicable because it

15 covers a range of abuses simply not present in this circumstance.” jç~.. The court added that the

16 defendant was “regrettably, charged under the wrong section of the statute” (j~) and it vacated

17 his sentence.

18 The current case is similar. The facts alleged about Defendant do not contain the 19 elements necessary for him to be convicted under 9 G.C.A. § 70.10.1(a)(1). The indictment does 20 not accuse him of cruelty when he allegedly shot the animals. Defendant, like the Pennsylvania 21

22 defendant, would have been more appropriately charged under a different section, such as 9

23 G.C.A. § 70.10(a)(3). That section reads, “A person commits the crime of animal abuse in the

24 second degree if the person intentionally, knowingly or recklessly kills, impounds or injures any

25 animal belonging to another without legal authority or consent of the owner.” ~ at (a)(3). The

26 Supreme Court of Guam stated in Guam v. Jones that the indictment must contain all elements Page 4of5 1 of the crime alleged, but the indictment here does not. Because the indictment accuses

2 Defendant of shooting the animals, but not cruelly killing or torturing them, the felony charge

~ will be dismissed.

CONCLUSION AND ORDER 5 For the reasons set forth above, the Court GRANTS Defendant’s motion to dismiss the 6 charges against him of two counts of Animal Cruelty (As a 31*~~ Degree Felony).

SO ORDERED, this J~dayof ~ 2019.

13 HO RABLE MICHAEL J. BORDALLO Judge, Superior Court of Guam 14

21 -

22 acknowledge that a copyof the onginal hereto was placed in the 23 COUrt bo~~ ~T1~

thte ~“h -~ rn~Coirt ~“ I 26

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