Rescuing Chad

The Vermont Supreme Court affirmed the civil forfeiture of a pet dog

Defendant Allan Washburn appeals a criminal division order granting the State’s motion for civil forfeiture of his dog, Chad, based on a finding that he subjected the dog to cruelty. On appeal, defendant argues that the criminal division lacked jurisdiction over the forfeiture proceeding because Chad was not seized under 13 V.S.A. § 354, that the State failed to prove animal cruelty by clear and convincing evidence under 13 V.S.A. § 352, and that the criminal division erred in admitting lay witness testimony regarding the internal temperature of defendant’s car under Vermont Rule of Evidence 701. Because we find no error with these issues, we affirm.

The following are the relevant, undisputed facts drawn from the record. On April 15, 2022, Animal Control Officer Daniel Hollister arrived at a Bennington parking lot and observed a crowd of people encircling a car that belonged to defendant. Officer Hollister approached the car, peered into it, and found Chad, a Siberian husky, locked inside with the windows rolled down approximately one- and one-half inches. He reported it was “unseasonably warm” that day and determined, via an infrared thermometer, that the car’s internal temperature was 97.4 degrees. Officer Hollister also observed that Chad was unable to stand up or move around inside the car, which was brimming with trash and spoiled food, and that Chad had no access to water. Based on this, he concluded that Chad was “in moderate distress.” Defendant returned to his car five to ten minutes later and was issued a criminal citation for animal cruelty.

There were two subsequent similar situations with Chad in a parked car.

The court

Here, the record supports the court’s findings by clear and convincing evidence of cruelty sufficient to warrant forfeiture. Most notably, the court’s findings underscored the multiple occasions Chad was found without access to water in defendant’s car. This lack of water was exacerbated by the high temperature in defendant’s car during both the April and June incidents. On April 15, the car’s internal temperature had reached 97.4 degrees, and on June 8, the car had been left in the sun, with no air-conditioning, and barely opened windows, where Chad was found panting, with a swollen tongue, and in early stages of heat exhaustion. The court further relied on the confined, trash-filled conditions of defendant’s car, which gave Chad nowhere to lie down apart from a pile of garbage on one seat and left him unable to move about. Testimony credited confinement with causing Chad’s lack of “muscle mass” and initial inability to run or maintain balance without falling, consistent with dogs who are often confined to too small spaces. The court also cited testimony that Chad was “underweight for his size” and suffered from a lack of nutrition on arrival at the Animal Center, which implied that defendant did not provide Chad an adequate diet. In fact, the court found defendant at least once attempted to feed Chad rotten food before a humane officer intervened. The court also found defendant’s claim that Chad regularly received veterinary care doubtful and noted that Chad required medical attention when he arrived at the Animal Center, which the record shows included vaccines and parasite treatments. Considered together, this evidence is sufficient to support the criminal division’s finding of cruelty by clear and convincing evidence.

The court concluded that any error in admitting temperature evidence was harmless. (Mike Frisch)