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Dauphine v. United States

Court of Appeals of Columbia District

August 29, 2013

Nico Dauphine, Appellant,
v.
United States, Appellee.

Submitted June 27, 2013

Appeal from the Superior Court of the District of Columbia (CMD-8754-11) (Hon. Truman A. Morrison, III, Trial Judge)

Harry A. Suissa was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Chrisellen Kolb, and Margaret Barr, Assistant United States Attorneys, were on the brief for appellee.

Before Fisher and Thompson, Associate Judges, and Pryor, Senior Judge.

Pryor, Senior Judge

After a nonjury trial, appellant was found guilty of attempted cruelty to animals in violation of D.C. Code §§ 22-1001, -1803 (2001). On appeal she contends the evidence was legally insufficient, and specifically that recent amendment of the statute changed it to a specific intent offense, thus rendering the evidence insufficient to convict. Being unpersuaded by these contentions, we affirm.

I.

At trial, the government's evidence revealed that for approximately five years prior to the date of the incident, Ms. Frances Sterling, a resident of the Park Square Apartments, had been feeding neighborhood cats by setting a bowl of cat food between plants located near the entrance to her building. On March 2, 2011, Ms. Sterling left the food in the bowl as she always did, making sure that the area was clean. The next morning, on her way to the store, Ms. Sterling checked the food and noticed a yellow or white powdery substance. She called the Washington Humane Society (WHS) to report the incident and WHS dispatched Officer Daniel D'Eramo to collect samples and take pictures of the scene. Officer D'Eramo placed the samples in an evidence bag, which was sent to Michigan State University for testing.

Dr. Wilson K. Rumbeiha, a veterinary toxicologist, examined the powdery substance and determined that it was bromadialone, an anticoagulant rodenticide that kills rodents by inhibiting their blood-clotting mechanisms. Dr. Janet Rosen of the Washington Animal Rescue League testified regarding the effects bromadialone would have on an animal if ingested. She described how the animal would suffer from internal bleeding, and would become very weak and have difficulty breathing as well as experiencing joint swelling and lameness. In her words, "it's not a pretty way to die."

In addition, the government introduced a surveillance video that showed appellant walking towards the bushes where the food bowls were kept, reaching into a black bag and then placing something in the vicinity of the food bowls. Appellant, testifying in her own defense, admitted that she did approach the food dishes, as shown on the video, but denied putting anything into the food dishes, claiming she was only cleaning the area to keep rats away.[1]

After hearing evidence, the trial court found that after Ms. Sterling cleaned the cat food area at 2:00 p.m. on March 2, no one else, other than Ms. Sterling and appellant, was proximate to the area until the additional substance on the food was discovered by Ms. Sterling the following day. This finding was supported by the testimony of the government witnesses, all of whom the court found to be credible, as well as photographic and video evidence which the court was able to view and assess for itself. The court determined that appellant's claim that she went to the cat food bowl to clean the area did not "have the ring of truth, " as the court was able to view the surveillance video and conclude that appellant had walked purposefully towards the cat food bowl, put on gloves, reached into a black bag and then moved her hand towards the cat food bowl, actions "far more consistent with placing something there than cleaning the area."

The court found that the government had proven the charge of attempted cruelty to animals beyond a reasonable doubt, and noted that the issue of malice in this case was a "red herring, " because "there wouldn't be any way for anybody to poison animals that would eat cat food in a non-malicious fashion except some ...


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