Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493 This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Sickel v. State (12/4/2015) ap-2480

Sickel v. State (12/4/2015) ap-2480

                                                                                              NOTICE
  

                The text            of   this opinion can be corrected before the opinion is published in the                                               

                Pacific Reporter.  Readers are encouraged to bring typographical or other formal                                                                                 

                errors to the attention of the Clerk of the Appellate Courts:    



                                                             303 K Street, Anchorage, Alaska  99501  

                                                                                Fax:  (907) 264-0878  

                                                                   E-mail:  corrections@ akcourts.us  



                                   IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                       



ROBIN  LEE  SICKEL,  

                                                                                                                                                                           

                                                                                                                         Court of Appeals No. A-11393  

                                                                                                                                                                                         

                                                                Appellant,                                              Trial Court No. 3KN-11-48 CR  



                                                v.  

                                                                                                                                             O  P  I  N  I  O  N  

STATE  OF  ALASKA,  



                                                                Appellee.                                                 No.  2480  -  December  4,  2015  



                                                                                                                                                                

                                Appeal from the District Court, Third Judicial District, Kenai,  

                                                                             

                                Sharon A.S. Illsley, Judge.  



                                                                                                                                                                 

                                Appearances:  David D. Reineke, under contract with the Public  

                                                                                                                                                      

                                Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                                                                                                                                                        

                                Anchorage,  for  the  Appellant.                                             Samuel  D.  Scott,  Assistant  

                                                                                                                                                          

                                District  Attorney,  Kenai,  and Michael  C.  Geraghty,  Attorney  

                                                                                                              

                                General, Juneau, for the Appellee.  



                                                                                                                                           

                                Before:  Mannheimer, Chief Judge, and Allard, Judge.  



                                               

                                Judge MANNHEIMER.  



                                Robin Lee Sickel and her romantic partner, Jeff Waldroupe, owned three                                                                                             



horses. They kept these horses on land owned by Waldroupe's father. In mid-December                                                                                         



2010, these horses were found to be starving and without shelter.                                                                                               The only food and                    



water available to them was frozen solid.                                                            One   of   the horses was more than 200 lbs                                                       


----------------------- Page 2-----------------------

underweight; it had collapsed and had lain there so long that its head and the side of its                                                                                                                                          



body were frozen to the ground.                                                          The horse had to be euthanized.                                                             



                                     Sickel was convicted of cruelty to animals under AS 11.61.140(a).                                                                                                                       This  



statute declares that it is a crime if a person, "with criminal negligence[,] fails to care for                                                                                                                                   



an   animal"   and this failure to provide care leads to the animal's death or causes the                                                                                                                                        



animal severe physical pain or prolonged suffering.                                                                                        AS 11.61.140(a)(2).                                       



                                     Sickel now appeals her conviction.                                                              She points out that, as a legal matter,                                           



a person who fails to prevent a harm does not act "with criminal negligence" unless the                                                                                                                                           



person has an applicable duty of care - a legal duty to                                                                                                    try   to   prevent the specified                       



                 1  

harm.        



                                    The statute at issue in this case, AS 11.61.140(a), does not define which  

                                                                                                                                                                                                                         



persons have a duty to care for particular animals.  The statute simply declares that any  

                                                                                                                                                                                                                                



person who violates this duty (acting with at least criminal negligence) is guilty  of a  

                                                                                                                                                                                                                                      



crime if their breach of duty leads to the animal's death or causes the animal severe  

                                                                                                                                                                                                                        



physical pain or prolonged suffering.  Because the statute fails to define who bears a duty  

                                                                                                                                                                                                                            



to care for animals, Sickel argues that the statute is unconstitutionally vague and that her  

                                                                                                                                                                                                                                 



conviction for cruelty to animals is therefore unlawful.  

                                                                                                                                                    



                                    It is true that the cruelty to animals statute fails to specify which persons  

                                                                                                                                                                                                                     



have a duty to care for particular animals.  But we are authorized to look to the common  

                                                                                                                                                                                                                  



law to remedy this omission.   As we explain in this opinion, we hold that  the  statute  

                                                                                                                                                                                                                       



applies to all persons who have undertaken responsibility for the care of an animal -  

                                                                                                                                                                                                                                   



either because they are the owner of the animal, or because they have agreed to kennel  

                                                                                                                                                                                                                        



          1       See   Rollin   M.   Perkins   &   Ronald   N.   Boyce,   Criminal   Law   (3rd   edition   1982),  



pp. 659-662; Wayne R. LaFave,                                                         Substantive Criminal Law                                                (2nd edition 2003),  6.2(a),                              

Vol. 1, pp. 436-443.                                  



                                                                                                               - 2 -                                                                                                           2480
  


----------------------- Page 3-----------------------

or board the animal,                                                              or because they have otherwise assumed responsibility for the                                                                                                                                                                               



animal's care.                                          



                                                   And even though AS 11.61.140(a)(2) is silent regarding this principle, the                                                                                                                                                                                                  



parties recognized that this principle controlled the                                                                                                                                                   outcome   of Sickel's case:                                                                                   they  



actively litigated whether Sickel had undertaken personal responsibility for the care of                                                                                                                                                                                                                                          



the horses,                                 and their final arguments to the                                                                                                  jury   emphasized that this question was                                                                                                    



dispositive of Sickel's guilt or innocence.                                                                                                                   We therefore affirm Sickel's conviction.                                                                                                                      



                          The scope of the duty of care under AS 11.61.140(a)(2)                                                                                                  



                                                    Sickelwas                               charged with violating subsection (a)(2) of the cruelty to animals                                                                                                                                                 



 statute.   This clause of the statute applies to a person who "fails to care for an animal".                                                                                                                                                                                                                                                  



In other words, the                                                      actus reus                              of this crime is defined as an omission - a failure to act.                                                                                                                                                                   



                                                   And as we explained earlier, the law does not punish a person's failure to                                                                                                                                                                                                      



act   unless   that   failure   to   act   constitutes   a   breach   of   that   person's   legal duty.                                                                                                                                                                                                                 See  



AS 11.81.900(b)(43) (defining "omission").                                                                                                                             And normally, a person has no duty to take                                                                                                          

                                                                                                                                                                                                                                                                    2   But the common  

affirmative action to prevent a crime or to protect others from harm.                                                                                                                                                                                                                                    



law recognizes several instances in which one person's relationship to another person  

                                                                                                                                                                                                                                                                                                                 



creates a duty of protection or care.  Thus, under the common law, parents have a duty  

                                                                                                                                                                                                                                                                                                                      



to protect their minor children, ship captains must come to the aid of their crew and their  

                                                                                                                                                                                                                                                                                                                          



passengers, and jailors must protect the inmates in their custody.  In general, see Wayne  

                                                                                                                                                                                                                                                                                                               



R. LaFave, Substantive Criminal Law (2nd edition 2003), 6.2(a)(1), Vol. 1, pp. 437-38.  

                                                                                                                                                                                                                                                                                                                                               



             2            See   Rollin M. Perkins & Ronald N. Boyce,                                                                                                                           Criminal Law                                         (3rd edition 1982),                                                       pp.  



659-662; Wayne R. LaFave,                                                                             Substantive Criminal Law                                                                           (2nd edition 2003),  6.2(a), Vol. 1,                                                                                      

pp. 436-443.                                     



                                                                                                                                                              - 3 -                                                                                                                                                         2480
  


----------------------- Page 4-----------------------

                                         The common law also recognizes that a duty of care can arise by contract                                                                                                                             



or agreement, or by any other voluntary assumption of care.                                                                                                                            Thus, a person employed                           



as a lifeguard at a beach or swimming pool assumes a duty of care toward the swimmers,                                                                                                                                                



and a person employed as a crossing guard at a school has a duty of care toward the                                                                                                                                                                         



students.    In general, see                                                   LaFave,  6.2(a)(3), Vol. 1, pp. 439-440.                                                                                           And if someone         



voluntarily   assumes   responsibility   for   a   helpless   person   (even   in   the   absence   of  



compensation or formal agreement),                                                                                this likewise gives rise to a duty to                                                                             protect the   



helpless person from further harm.                                                                         LaFave,  6.2(a)(4), Vol. 1, p. 440.                                                                             



                                         In past Alaska cases, these common-law principles of responsibility have                                                                                                                                       



been applied to define the scope of criminal statutes - even when those statutes do not                                                                                                                                                                      



expressly speak of liability based on a failure to act.                                                                                                   In both                Willis v. State                            , 57 P.3d 688,               



693-97 (Alaska App. 2002), and                                                                     Michael v. State                                    , 767 P.2d 193, 197-98 (Alaska App.                                                              

                     3  this Court held that a parent can properly be convicted of assault for failing to  

 1988),                                                                                                                                                                                                                                                         



take reasonable steps to protect their child when they know that the child is in danger of  

                                                                                                                                                                                                                                                                



being assaulted by the other parent.  

                                                                                                              



                                         Here, we are dealing with a statute that expressly  defines the prohibited  

                                                                                                                                                                                                                                        



conduct as a failure to act.  But a failure to act can not be punished unless it constitutes  

                                                                                                                                                                                                                                    



a breach of duty.  To define the scope of the applicable duty, we conclude that we should  

                                                                                                                                                                                                                                                   



turn to the common-law principles that we have been discussing.  

                                                                                                                                                                                                     



                                         The  underlying aim  of  AS  11.61.140(a)(2)  is  to  protect  animals  from  

                                                                                                                                                                                                                                                      



serious neglect by the people who have assumed responsibility for their care.  Typically,  

                                                                                                                                                                                                                                        



these people will be the animals' owners.   But there will be times when other people  

                                                                                                                                                                                                                                                  



assume responsibility for the care of an animal, either in conjunction with the owners or  

                                                                                                                                                                                                                                                                



in lieu of the owners.   Thus, the real question is not to identify the persons who have  

                                                                                                                                                                                                                                                       



          3         Reversed on other grounds                                                        , 805 P.2d 371 (Alaska 1991).                                                            



                                                                                                                             - 4 -                                                                                                                        2480
  


----------------------- Page 5-----------------------

legal ownership of the animal, but rather the                                                      persons who have taken on the duty of                                            



caring for them.                     



                             This is borne out by the corresponding law of other jurisdictions.                                                                                 For  



example,   both California and Rhode Island define the duty as falling on any person                                                                                      

                                                                                                                                                               4   Texas law  

"having the charge or custody of any animal, either as owner or otherwise".                                                                                                       



                                                                                                                                                                          5  

declares that the duty of care applies to "[any] animal in the person's custody".  

                                                                                                                                                                             



                             While the owners of animals may often be the ones who are in charge of  

                                                                                                                                                                                     



providing their daily care, this is not always true.   Thus, in State v. Yorczyk, 356 A.2d  

                                                                                                                                                                               



 169, 170 (Conn. 1974), the court held that it was reversible error to instruct the jury that  

                                                                                                                                                                                 



the owner of an animal is criminally liable for its mistreatment or neglect, even when the  

                                                                                                                                                                                   



owner did not have charge and custody of the animal and did not know that it was being  

                                                                                                                                                                              



mistreated or neglected.  See also Muhlhauser v. State, 1900 WL 1185, *5 (Ohio 1900),  

                                                                                                                                                                           



where the Ohio Supreme Court held that it was reversible error to prohibit the owner  

                                                                                                                                                                           



from introducing evidence that the animals were in someone else's custody, and that the  

                                                                                                                                                                                   



owner had no reasonable notice that the animals lacked sufficient food or water, or that  

                                                                                                                                                                                 



they were otherwise being mistreated.  

                                                          



                             We therefore hold that AS 11.61.140(a)(2) applies only to people who have  

                                                                                                                                                                                



assumed responsibility for the care of an animal, either as an owner or otherwise.  

                                                                                                                                                                               



       4      California Penal Code  597(b); Rhode Island General Laws  4-1-2(a).                                                                             



       5  

                                                                      

              Texas Penal Code  42.09.  



                                                                                        - 5 -                                                                                   2480
  


----------------------- Page 6-----------------------

                 Application of this law to Sickel's case                                                                  



                                   The trial judge in Sickel's case did not instruct the jury that the cruelty to                                                                                                             



animals statute was limited in this way.                                                                The judge instructed the jury that the State had                                                                  



to prove that Sickel failed to care for the horses,                                                                                    and that she acted "with                                            criminal  



negligence" in failing to care for the horses, but the judge never told the jury directly that                                                                                                                           



there was no "criminal negligence" unless the State proved that Sickel had a duty to care                                                                                                                               



for the horses.                          



                                   However, we have repeatedly held that flaws in jury instructions can be                                                                                                                   

                                                                                                      6     We have examined the final arguments of the  

cured by the arguments of the parties.                                                                                                                                                                                     



parties in Sickel's case, and we are convinced (based on those arguments) that the jurors  

                                                                                                                                                                                                                    



understood that Sickel could not be convicted of cruelty to animals unless  she  had  

                                                                                                                                                                                                                         



assumed responsibility for the care of the horses.  

                                                                                                                                   



                                   In the early portion of the prosecutor's summation, the prosecutor clarified  

                                                                                                                                                                                                               



that "ownership" of the horses was not the issue - that the issue was whether Sickel had  

                                                                                                                                                                                                                          



assumed responsibility for the care of the horses, either because she was one of the legal  

                                                                                                                                                                                                                       



owners or because she otherwise assumed responsibility for the care of the horses by  

                                                                                                                                                                                                                            



"exercis[ing] essentially all the attributes, all the characteristics of ownership".  

                                                                                                                                                                                                              



                                   The prosecutor emphasized the evidence that the horses were purchased  

                                                                                                                                                                                                         



primarily for Sickel's benefit,  and that Sickel fed the horses  on  a  regular basis and  

                                                                                                                                                                                                                         



provided their other necessities.  The prosecutor also emphasized that it was Sickel who  

                                                                                                                                                                                                                        



made the decision to call the veterinarian, and who made the decision whether the horse  

                                                                                                                                                                                                                     



would be euthanized by injection or by shooting.  Toward the end of his summation, the  

                                                                                                                                                                                                                           



prosecutor told the jurors:  

                                                   



         6        See, e.g.            ,  Riley v. State                     , 60 P.3d 204, 208 (Alaska App. 2002);                                                             O'Brannon v. State                                ,  



812 P.2d 222, 229 (Alaska App. 1991).                                            



                                                                                                            - 6 -                                                                                                       2480
  


----------------------- Page 7-----------------------

                       

                                                                                                                 

                               [These] animals are in a unique situation. They're in a  

                                                                                                         

                     pen; ... they can't leave.  So they're essentially totally reliant  

                                                                                                                   

                     on the people  caring for them,  totally at their mercy.                                 ...  

                                                                                                        

                     These are essentially helpless  creatures, completely relying  

                                                                                                               

                     on ... two people: it's Robin [Sickel] and Jeff [Waldroupe] ...  

                                                                                                         

                     who've  frankly  failed  in  that  obligation  to  care  for  those  

                                   

                     animals.  

                       

                                                                                                                                  

                     The defense attorney's primary argument to the jury was that Sickel did not  



                                                                                                                               

act negligently - that she could not reasonably have known that the horse was in such  



                                                                                                                                  

a dire condition.  Sickel's attorney did not dispute that Sickel assumed responsibility for  



                                                                                                                                  

the  care of the horses.   Rather, the defense attorney suggested that Sickel should be  



                                                                                                                        

acquitted   because   Jeff   Waldroupe   and   Jeff   Waldroupe's   father   also   assumed  



                                                                                                                                

responsibility for the care of the horses, but the State did not charge these two men with  



                               

cruelty to animals.  



                                                                                                                                

                     Given the attorneys' arguments, the jurors would have understood that they  



                                                                                                                  

could not convict Sickel unless they found that Sickel had undertaken a responsibility  



                                    

to care for the horses.  



                                                                                                                            

                     In her brief to this Court, Sickel contends that the prosecutor did not merely  



                                                                                                                                   

argue that Sickel could be convicted because she assumed responsibility for the care of  



                                                                                                                                   

the horses.   Rather, according to Sickel, the prosecutor suggested that Sickel could be  



                                                                                                                           

convicted because she failed to meet a moral responsibility toward the horses.  



                                                                                                                                 

                     The  last  three  paragraphs  of  the  prosecutor's  rebuttal summation  are  



                                                                                                                          

arguably ambiguous on this point.  When read out of context, the prosecutor's remarks  



                                                                                                                                  

could potentially be interpreted as inviting the jury to convict Sickel because she had the  



                                                                                                                                

last  clear  chance  to  alleviate  the  horses'  condition,  regardless  of  whether  she  had  



                                                                      

assumed responsibility for the horses' care.  



                                                                - 7 -                                                          2480
  


----------------------- Page 8-----------------------

                                                                                                                             

                    Specifically, the prosecutor noted that Sickel knew more about horses than  



                                                                                                                              

Jeff Waldroupe and the other people who were involved in caring for the horses, and that  



                                                                                                                               

Sickel was the person who was tending the horses during the last three days before the  



                                                                                                            

discovery of the collapsed horse (the horse that had to be euthanized).  



                                                                                                                                 

                    But when these remarks are read in context, they are merely extensions of  



                                                                                                                                

the prosecutor's primary argument that Sickel had assumed responsibility for the care of  



                                                                                                                              

the  horses.         In  particular,  when  the  prosecutor  remarked  that  Sickel  had  the  last  



                                                                                                                 

opportunity to do something to save the dying horse, this was based on the prosecutor's  



                                                                                                                          

assertion that Sickel had essentially assumed sole responsibility for the care of the horses  



                                         

during the last three days.  



                                                                                                                            

                    Viewing  the  prosecutor's argument as a whole,  the jurors would have  



                                                                                                                        

understood that the prosecutor was asking them to find legal responsibility (i.e., Sickel's  



                                                                                     

assumption of a duty of care), not moral responsibility.  



          Conclusion  



                                                                                                                       

                    We hold that subsection (a)(2) of the cruelty to animals statute requires  



                                                                                                                                

proof that the defendant assumed responsibility for the care of an animal, either as an  



                                

owner or otherwise.  



                                                                                                                        

                    Even though Sickel's jury was not instructed on this element of the offense,  



                                                                                                          

we conclude that this flaw was cured by the arguments of the parties.  



                                                                                                                      

                    Accordingly, the judgement of the district court is AFFIRMED.  



                                                              - 8 -                                                          2480
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC