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01/11/91 ELSIE M. CARR v. UNITED STATES

January 11, 1991

ELSIE M. CARR, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Richard A. Levie, Trial Judge

Rogers, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Steadman

Associate Judge: Appellant was convicted in a misdemeanor bench trial of unnecessarily failing to provide her dog, named Kim, with proper food and drink, in violation of D.C. Code § 22-801 (1989), and received one year of supervised probation and 100 hours of community service. On appeal, she asserts as a due process violation that the offense of which she was convicted was not properly charged in the information. She further claims that reversible error occurred in the admission of hearsay testimony by a Humane Society officer as to an out-of-court statement concerning the dog's condition made by the examining veterinarian, who ultimately herself took the stand at the trial as a witness. Finding neither of these grounds nor any of a number of others also raised by appellant sufficient to warrant a new trial, we affirm the conviction.

I

Brenda Purvis, an officer with the Washington Humane Society, observed a Doberman pinscher dog in the yard of appellant's home in an extremely emaciated condition, exposed to the cold and wind in twenty-degree temperature. After some Discussion with appellant in her home, Purvis transported the dog to Dr. Diane Ferris, a veterinarian, for examination and treatment. The dog recovered and was placed in a foster home.

The information charged appellant with an offense under D.C. Code § 22.801, *fn1 which reads in its entirety as follows:

Whoever overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, or causes or procures to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated, or cruelly killed any animal, and whoever, having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same, or unnecessarily fails to provide the same with proper food, drink, shelter, or protection from the weather, shall for every such offense be punished by imprisonment in jail not exceeding 1 year, or by fine not exceeding $250, or by both such fine and imprisonment.

(Emphasis added.)

The information was a printed form, which provided two separate blocks for charging offenses under that section. The block that was checked in appellant's case read: "CRUELTY TO ANIMALS -- in that he cruelly beat, tortured, tormented, killed and deprived of necessary sustenance a dog, in violation of Section 22-801, District of Columbia Code." The block immediately following, which was not checked, read: "CRUELTY TO ANIMALS -- in that, having the charge and custody of , he inflicted unnecessary cruelty upon it and unnecessarily failed to provide it with proper food, drink, shelter and protection from the weather, in violation of Section 22-801, District of Columbia Code."

Appellant argues, in essence, that section 22-801 proscribes two distinct offenses, one defined in the first phrase beginning with "whoever" and continuing until the word "and" in the middle of the section ("offense A"), and the second defined in the phrase beginning with the second "whoever" immediately following the "and" ("offense B"). Her argument is that she was charged in the information with committing offense A but tried and convicted of committing offense B, and was thus "deprived of notice and due process of law."

Appellant is perfectly correct in observing that the block in the information that was checked in her case relates solely to offense A. It is equally true that from the very beginning of the prosecutor's opening statement, it was clear that the government was proceeding under offense B, either in addition to or in lieu of offense A. The prosecutor in the third paragraph of her opening statement proceeded to set forth the elements of the offense she was going to prove; included in that recitation were the requirements that the government show that appellant "had charge or custody of the dog in question," and "failed unnecessarily to provide the dog with food, drink, or deprived the dog of necessary sustenance." Only in an offense B prosecution is it relevant whether the defendant had "charge or custody of the dog in question," and the phrase "failed unnecessarily to provide the dog with food drink" is language from the statute relating to offense B. The wrongdoing addressed throughout the trial focused on the lack of food and drink. Likewise, in its instructions, the trial court stated that the charge in the information was that "having the charge and custody of Kim, a dog, [the defendant] unnecessarily failed to provide Kim with proper food and drink." And in its charge to the jury, the trial court stated that "the essential elements of this offense, each of which the government must prove beyond a reasonable doubt, are two. Number one, that the defendant had charge or custody of the dog, Kim; second, that the defendant unnecessarily failed to provide the dog, Kim, with proper food or drink or deprived the dog of necessary sustenance."

We agree with the trial court's statement, in its order denying the appellant's motion for judgment of acquittal, that "it cannot reasonably be argued that there is any significant difference that could have affected the jury's verdict between unnecessarily failing to provide food or drink and depriving the animal of necessary sustenance" and that "the facts necessary to prove deprivation of necessary sustenance are precisely the same ones needed to prove unnecessary failure to provide proper food or drink." In the circumstances of this case, it cannot be said that the appellant lacked notice of the charge against her or could have faced further prosecution without violation of the double jeopardy clause. *fn2

We think the case before us is controlled by Byrd v. United States, 579 A.2d 725 (D.C. 1990). In that case, the appellant was charged by information with possession of drug paraphernalia consisting of a pipe, in violation of D.C. Code § 33-550 (1981). That section only related to the possession of drug paraphernalia used to administer drugs through subcutaneous injection. However, the instructions given by the trial court also covered all the elements necessary to convict under D.C. Code § 33-603(a), which more generally made illegal the possession of drug paraphernalia with intent to introduce into the human body a controlled substance. We said: "Where there has been, as here, no more than a miscitation of a statute, reversal of a conviction is required only if the defendant is prejudiced." Byrd, supra, 579 A.2d at 728. Finding no evidence that the appellant was harmed by the variance, we affirmed the conviction under the proper statute. We agree with the trial court here that, likewise, "it cannot be said that the defendant has suffered any prejudice, let alone prejudice that would entitle her to a judgment of acquittal after the jury's verdict."

We have not overlooked appellant's baseless argument that to prove a violation, it was necessary to show, as charged in the information, that the appellant "cruelly beat, tortured, tormented, killed and deprived of necessary sustenance" her dog. It is well-settled that the elements of a charge in an information may be set forth in the conjunctive yet proven in the disjunctive, if that is the extent of the statutory requirement. See, e.g., Marcus v. United States, 476 A.2d 1134, 1137 (D.C. 1984) (the "suggestion that an amendment occurred . . . ignores the established principle that when the statute sets forth various elements of the offense in the disjunctive, and the indictment nevertheless lists them conjunctively, it is not error for the trial court to instruct the jury that the government need only prove one of the disjunctive elements") (citing cases in accord). Thus, the government was not required to prove any more than the elements required by the statute, ...


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