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STATE OF CONNECTICUT v. FREDERICK ACKER

(AC 36578)

Sheldon, Prescott and West, Js.

Argued February 5—officially released October 27, 2015

(Appeal from Superior Court, judicial district of

Litchfield, geographical area number eighteen,

Danaher, J.)

Frederick B. Acker, self-represented, with whom, on

the brief, was Ralph C. Crozier, for the appellant

(defendant).

Lisa A. Riggione, senior assistant state’s attorney,

with whom were Meredith S. Blake, special deputy

assistant state’s attorney, and, on the brief, David S.

Shepack, state’s attorney, and Devin T. Stilson, supervisory assistant state’s attorney, for the appellee (state).
Opinion

WEST, J. The defendant, Frederick Acker, appeals

from the judgment of conviction of fifteen counts of

animal cruelty in violation of General Statutes § 53-247

(a).1 On appeal, the defendant claims that (1) there was

insufficient evidence to support the conviction and (2)

§ 53-247 (a) is unconstitutionally vague as applied to

the facts of this case. We affirm the judgment of the

trial court.

The record reveals the following facts and procedural

history. In the fall of 2012, the defendant was the director of a private organization, Connecticut Pets Alive,

Inc., also known as the Society for the Prevention of

Cruelty to Animals of Connecticut, Inc., which maintained a nonprofit facility to house rescued dogs in

Monroe. In October, 2012, the defendant, on behalf of

Connecticut Pets Alive, Inc., rented a second, larger

rescue facility in Bethlehem (Bethlehem facility).2 The

Bethlehem facility was a three section barn with garage

doors, a concrete floor, and an open rafter roof. The

defendant rented the right and center bays of the barn.

His plan was for the dogs to be kept in the right, unfinished bay until the construction on the center bay was

completed, after which the plan was to move the dogs

to the center bay and complete the right section.

On October 10, 2012, a dog escaped from the Bethlehem facility. On October 11, 2012, Judy Umstead, a

Bethlehem/Woodbury Animal Control Officer, received

a complaint about a dog on Route 63 and found a dog

dead on the side of the road. Umstead visited the Bethlehem facility and determined that the dog that had been

struck by a car was the dog that had escaped.

On October 17, 2012, Umstead returned to the Bethlehem facility with Department of Agriculture Animal

Control Officer Richard Gregan. The defendant was not

present, but his employee allowed Umstead and Gregan

to enter, tour, and photograph the Bethlehem facility,

and to look at the dogs. They observed that the facility

lacked insulated outer walls, hot water, and adequate

interior lighting. They observed three small space heaters that produced inadequate heat in light of the size

of the space and the lack of insulation.

After the visit, Gregan called the defendant to voice

his concerns that cold weather was coming and that

the Bethlehem facility was inadequately heated. Gregan

advised the defendant that the space heaters were inadequate for the Bethlehem facility. In response to Gregan’s concerns, the defendant explained that he knew

the overnight temperatures were getting colder, and

that he boarded the small dogs overnight with his veterinarian, David Basak-Smith, so that they could be warm.3

The defendant stated that he was making plans to heat

the building properly, and to address most, if not all,

of the concerns Gregan voiced.
On November 8, 2012, at approximately 7:45 a.m.,

State Trooper Matthew Eagleston and Umstead arrived

at the Bethlehem facility because they were concerned

about the cold temperatures. The approximate high and

low outdoor temperatures in Morris on November 6, 7,

and 8, 2012, were 38 and 20 degrees, 33 and 27 degrees,

and 35 and 31 degrees, respectively.4 There was light

to moderate snow on November 7, 2012, and the winds

on November 8, 2012, ranged from a low of 10 miles

per hour to a high of 27 miles per hour. An employee

of the defendant arrived shortly after 7:45 a.m., and

gave Eagleston and Umstead permission to enter the

Bethlehem facility and look around. The conditions

inside the Bethlehem facility were very cold and drafty,

with two operating space heaters providing little heat.

Many of the dogs were in travel size crates intended

for short-term confinement, with no bedding other than

some newspaper.

After leaving the Bethlehem facility, Eagleston prepared a search and seizure warrant to seize the dogs

and have them evaluated by a veterinarian. At 3:30 p.m.

that day, Eagleston and the search team entered the

Bethlehem facility to execute the warrant. Eagleston

observed that a thermometer near one of the space

heaters indicated that the temperature was 36 degrees.

Each dog was briefly evaluated by a veterinarian, Bradley Davis, photographed by the state police, and then

removed from the Bethlehem facility by Davis and animal control officers.

On December 2, 2013, the state filed an amended long

form information charging the defendant with sixtythree counts of animal cruelty in violation of § 53-247

(a). Each count identified a different dog and alleged

that the defendant had confined and failed to give the

animal ‘‘proper care by exposing him [or her] to conditions that placed him [or her] at risk of hypothermia,

dehydration, or to conditions injurious to his [or her]

well-being . . . .’’

After a trial to the court, Danaher, J., the defendant

was convicted of fifteen counts5 and acquitted of the

remaining forty-eight counts of animal cruelty. In reaching its decision, the trial court relied on State ex rel.

Gregan v. Koczur, 287 Conn. 145, 947 A.2d 282 (2008)

(Koczur). In Koczur, the evidence showed that the

defendant was keeping forty-six live cats and one dead

cat in a 950 square foot home, much of which was so

cluttered with personal effects and trash that it was

unusable.Id., 157. In determining the meaning of neglect

under General Statutes § 22-329a, the court looked to

§ 53-247, as § 22-329a incorporates by reference the

standards set forth in § 53-247. Id., 153. The court concluded that the trial court had applied the proper standard in determining that the cats were neglected,

because ‘‘the failure to give proper care to a confined

animal or to provide it with proper food constitutes
neglectful conduct in violation of § 53-247 (a).’’ Id., 155.

In the present case, the trial court found: ‘‘[U]nlike

the situation in Koczur where the cats at issue were

within the defendant’s residence and presumably had

[some] freedom to move about, the dogs in this case

spent most of their days, and up to sixteen hours overnight, confined in carriers. Many of the latter carriers

were intended for transport and not long-term confinement. Further, the dogs were confined in a facility that

was not sufficiently heated. In Koczur most of the animals required further medical treatment after they were

seized; in this case most of the dogs that were seized

did not require treatment for conditions related to their

confinement. However, there were fifteen dogs that

were in jeopardy on the date they were seized, due

to the low temperature in the environment where the

defendant had confined them. The latter fifteen dogs

required transfer to a warm environment when they

were seized.’’

The court further found: ‘‘Some of the dogs seized

in this case were of a size and breed which made them

particularly susceptible to cold temperatures. The

defendant was on notice that the lack of heat in the

facility was problematic; and although the defendant

made some efforts to ameliorate the cold conditions

in which the dogs were confined, those efforts were

inadequate as to some of the dogs. The fact that the

defendant was on notice that the facility was unheated,

the fact that he made meager efforts to address the

cold temperatures to which the dogs were exposed, the

fact that he misled an animal control officer as to the

manner in which he cared for smaller dogs at night, all

coupled with the testimony regarding the conditions at

the facility on the date of the seizure, combine to convince the court that the state established, beyond a

reasonable doubt, that a person of ordinary intelligence

would know that the manner in which certain small

dogs were confined was not proper care.’’

The court concluded that the defendant had failed

to give proper care to fifteen dogs ‘‘by exposing those

dogs to conditions injurious to their well-being [by confining] those dogs in a facility that, in view of the nature

of the confinement, provided inadequate heat for the

size and breed of the . . . dogs.’’ The court imposed

a total effective sentence on all charges of six months

incarceration, execution suspended, followed by two

years probation. This appeal followed.

I

The defendant’s first claim is difficult to decipher.

He titles his first claim: ‘‘The court applied an improper

standard in finding the defendant guilty pursuant to

[§] 53-247 (a) as to specific dogs having insufficient

evidence of improper care to warrant the findings versus other dogs of same or similar breeds.’’ At first
glance, it appears the defendant is arguing that the court

applied an improper legal standard because he states

‘‘[t]he meaning of ‘proper care’ is a question of statutory

interpretation over which review is plenary,’’ and cites

the standard used when interpreting a statute. The

defendant, however, goes on to describe the evidence

presented as to each of the dogs at issue and to argue

how that evidence was insufficient to support the

court’s conclusion that the defendant had failed to provide proper care to that dog.6 He argues that the only

basis for each finding of guilt was the court’s belief that

on a certain day some of the dogs were cold and that

he provided inadequate heat for the size and breed of

such dogs. He contends that none of the dogs needed

emergency medical treatment or follow-up treatment.

We interpret the defendant’s first claim as raising a

sufficiency argument—namely, that the court improperly found that he had violated § 53-247 (a) because

there was insufficient evidence that these particular

fifteen dogs did not receive proper care. We reject the

defendant’s claim.

We begin by setting forth the standard of review that

informs our analysis. ‘‘In reviewing a sufficiency of the

evidence claim, we apply a two part test. First, we

construe the evidence in the light most favorable to

sustaining the [decision]. Second, we determine

whether upon the facts so construed and the inferences

reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force

of the evidence established guilt beyond a reasonable

doubt . . . . This court cannot substitute its own judgment for that of the [fact finder] if there is sufficient

evidence to support the [decision]. . . . Moreover, we

do not ask whether there is a reasonable view of the

evidence that would support a reasonable hypothesis

of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder

of fact’s] verdict of guilty.’’ (Citation omitted; internal

quotation marks omitted.) State v. Revels, 313 Conn.

762, 778, 99 A.3d 1130 (2014).

We also are mindful that ‘‘[q]uestions of whether to

believe orto disbelieve a competent witness are beyond

our review. As a reviewing court, we may not retry the

case or pass on the credibility of witnesses. . . . Our

review of factual determinations is limited to whether

those findings are clearly erroneous. . . . We must

defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its

firsthand observation of their conduct, demeanor and

attitude.’’ (Internal quotation marks omitted.) State v.

Pettigrew, 124 Conn. App. 9, 31, 3 A.3d 148, cert. denied,

299 Conn. 916, 10 A.3d 1052 (2010).

Section 53-247 (a) provides in relevant part: ‘‘Any

person . . . who, having impounded or confined any

animal, fails to give such animal proper care . . . or,
having charge or custody of any animal . . . fails to

provide it with proper food, drink or protection from

the weather . . . shall, for a first offense, be fined not

more than one thousand dollars orimprisoned not more

than one year or both . . . .’’

We conclude that the totality of the evidence was

sufficient to allow the court to conclude beyond a reasonable doubt that the defendant did not provide proper

care to the fifteen dogs. The defendant was warned

that cold weather was coming and that the Bethlehem

facility was inadequately heated. He was advised that

the space heaters were inadequate, and he misled an

animal control officer as to how he cared for the small

dogs overnight. The trial court credited the testimony

of Davis and Eagleston that on November 8, 2012, there

were only two space heaters in the Bethlehem facility,

the space heaters gave off very little heat, and the temperature inside the Bethlehem facility was as low as 36

degrees. The record before us also includes the testimony from multiple witnesses, including Davis and

Gregan, that many of the dogs were in travel size crates

intended for short-term confinement only, with no bedding other than some urine soaked newspaper that was

pushed to the side in many of the crates. The fifteen

dogs were cold and struggling to maintain their body

temperatures, as evidenced by their violent shivering.7

Additionally, the fifteen small dogs required transfer to

a warmer environment when they were seized because

they were cold and violently shivering. Construing the

evidence in the light most favorable to sustaining the

decision, we hold that the evidence was sufficient to

support a finding beyond a reasonable doubt that the

defendant confined and failed to provide proper care

to the fifteen dogs in violation of § 53-247 (a).

II

We next address the defendant’s claim that § 53-247

(a) is void for vagueness, as applied to the facts of this

case, when the court found him guilty, underthe statute,

for failure to render ‘‘proper care’’ to fifteen dogs in

his charge or custody by the manner in which he had

confined them—in small cages, without bedding, and

at a low temperature, when the dogs were exhibiting

signs of imminent hypothermia. The defendant argues

that the statute prescribes no standards for the care

and keeping of dogs, either in general terms or, more

specifically, in relation to sheltering them from the cold.

Without such statutory standards, claims the defendant,

the statute fails to give adequate notice to persons governed by it to pass constitutional muster.

‘‘A statute . . . [that] forbids or requires conduct in

terms so vague that persons of common intelligence

must necessarily guess at its meaning and differ as to

its application violates the first essential of due process.

. . . Laws must give a person of ordinary intelligence

a reasonable opportunity to know what is prohibited
so that he may act accordingly. . . . A statute is not

void for vagueness unless it clearly and unequivocally

is unconstitutional, making every presumption in favor

of its validity. . . . To demonstrate that [a statute] is

unconstitutionally vague as applied to [him], the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what

was prohibited or that [he was] the victim of arbitrary

and discriminatory enforcement. . . . [T]he void for

vagueness doctrine embodies two central precepts: the

right to fair warning of the effect of a governing statute

. . . and the guarantee against standardless law

enforcement. . . . If the meaning of a statute can be

fairly ascertained a statute will not be void for

vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases

there lurk uncertainties. . . . Unless a vagueness claim

implicates the first amendment right to free speech,

[a] defendant whose conduct clearly comes within a

statute’s unmistakable core of prohibited conduct may

not challenge the statute because it is vague as applied

to some hypothetical situation . . . .’’ (Citation omitted; emphasis added; internal quotation marks omitted.)

State ex rel. Gregan v. Koczur, supra, 287 Conn. 156–57.

As stated previously, § 53-247 (a) provides in relevant

part: ‘‘Any person . . . who, having impounded or confined any animal, fails to give such animal proper care

. . . or, having charge or custody of any animal . . .

fails to provide it with proper food, drink or protection

from the weather . . . shall, for a first offense, be fined

not more than one thousand dollars or imprisoned not

more than one year or both . . . .’’

Here, the question is whether the statute put the

defendant on sufficient notice that the manner in which

he cared for the dogs in his charge or custody was

improper and, thus, violated the statute, by failing to

provide them with proper protection from the cold. The

manifest purpose of the statute is to ensure that no

impounded or confined animal, including any dog, is

exposed by its caretaker to conditions harmful to its

health or well-being. Such harmful conditions can result

from extremes in temperature, extreme dampness or

dryness, or unsafe exposure to wind, hail, lightning, or

other atmospheric phenomena that, alone or in combination, risk harming the animal’s health or physical

condition. See generally Regs., Conn. State Agencies

§ 22-336-13 et seq. (standards for construction and

improvement of dog pounds including adequate heat,

water, and shelter).

Section 53-247 (a) does not include a list of extreme

conditions to which caretakers cannot lawfully expose

animals of particular species or breeds without violating

the statute. The inclusion of such a list in the statute

would be impractical at best, as the statute is intended

to protect all impounded or confined animals from
exposure to conditions that risk harming their health

or physical condition, and the species and breeds for

which such protection is sought are too numerous to

codify. See State v. DeFrancesco, 235 Conn. 426, 443–44,

668 A.2d 348 (1995) (‘‘It is not necessary . . . that a

statute list the precise conduct prohibited or required.

. . . It is recognized that the law may be general in

nature; the constitution requires no more than a reasonableness of certainty.’’ [Internal quotation marks omitted.]). The predictable effects, moreover, of exposure

to extreme conditions are naturally quite variable, even

among animals of particular species or breeds, making

a species-by-species or breed-by-breed codification of

the limits of permissible exposure to such conditions

of doubtful utility.

What is—or ought to be—clear to any caretaker of

an animal in his charge or custody, however, is when

that animal exhibits physical or behavioral signs that

it has begun to suffer adverse effects from its exposure

to extreme conditions. When the animal displays visible

signs of distress resulting from its exposure to extreme

temperatures, the caretaker is placed on notice that the

manner in which he is keeping the animal has placed

the animal at risk of suffering illness or physical harm.

Conduct by a caretaker, which places an animal in his

charge or custody at such a risk of illness or physical

harm that it begins to exhibit the visible signs of such

illness or harm, clearly lies at the ‘‘statute’s unmistakable core of prohibited conduct . . . .’’ (Internal quotation marks omitted.) State ex rel. Gregan v. Koczur,

supra, 287 Conn. 156.

In this case, although the fifteen dogs, whose exposure to extreme cold underlay the defendant’s convictions, were of different breeds and sizes, they all shared

the common characteristic that, when observed in the

place where the defendant had confined them, all were

exhibiting the initial signs of hypothermia. Each was

severely shaking to supply itself with warmth not otherwise available to it from its bedding or the defendant’s

electronic heaters, thus, in the opinion of a veterinarian,

requiring the animal’s immediate removal to a warmer

environment. The conduct that caused each of these

dogs to be kept in such conditions, despite their visible,

weather induced suffering, clearly lies at the unmistakable core of the conduct which any person of ordinary

intelligence would know to be proscribed by the statute.

On that basis, we conclude that § 53-247 (a) is not vague

as applied to the facts of this case.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Section 53-247 (a) was amended by No. 12-86 of the 2012 Public Acts

and No. 13-258, § 114, of the 2013 Public Acts to add an additional penalty

for a subsequent offense. Those amendments are not at issue in this appeal,

and all references are to the current statute.

2 The lease agreement for the Bethlehem facility is signed by the owner

of the facility and by the defendant, on behalf of Connecticut Pets Alive,
Inc. The address for the Bethlehem facility is listed as 310 Watertown Road,

Morris, at the behest of the tax assessor.

3

In its memorandum of decision, the trial court credited the testimony

of Basak-Smith that the defendant had not kenneled dogs with him in the

past three years.

4 All of the temperatures listed in this opinion refer to Fahrenheit measurements.

5 The fifteen dogs are identified in counts 8, 10, 13, 14, 15, 16, 18, 19, 20,

23, 29, 40, 49, 58, and 59, and depicted in state’s exhibits 27, 29, 32, 33, 34,

36, 37, 38, 41, 47, 58, 67, 76, and 77. We note, for clarity, that state’s exhibit

32 depicts two of the dogs. Specifically, the dogs identified in counts 13

and 14.

6 We note here that in Bethlehem v. Acker, 153 Conn. App. 449, 452–53,

102 A.3d 107 (2014), cert. denied, 315 Conn. 908, 105 A.3d 235 (2015), the

defendantraised the argument that a different trial court applied an improper

legal standard in the civil matter involving the same facts and the same

dogs. In Bethlehem v. Acker, supra, 452–53, the town of Bethlehem sought

custody of the defendant’s dogs on the ground that the defendant was

neglecting them in violation of § 22-329a. The trial court found that the

‘‘smaller breed dogs’’ were neglected, within the meaning of §§ 22-329a

and 53-247, because the defendant failed to provide the dogs with proper

protection from the weather. Id., 461. On appeal, the defendant argued that

the trial court had applied an improper standard in making that determination because the court improperly relied on a temperature standard that

was not established by statute. Id., 460. This court concluded, ‘‘following

an examination of the language of § 22-329a and its relationship to other

statutes, that failure to provide dogs with adequate protection from the

weather constitutes neglect.’’ Id., 462. This court, citing our Supreme Court’s

decision in State ex rel. Gregan v. Koczur, supra, 287 Conn. 145, stated that

§ 22-329a does not contain a definition or standard of neglect, but rather

incorporates by reference specific statutes, and concluded that the neglect

referred to in § 22-329a includes the failure to provide protection from

the weather, as provided in § 53-247. Id., 462–63. This court found that, in

concluding that interior temperatures of 30 degrees constituted neglect with

respect to the smaller breed dogs, ‘‘[t]he [trial] court neither adopted nor

applied an improper legal standard. The court did not legislate a new standard applicable to rescue facilities; rather, it determined only whether, on

the facts of this case, the [defendant] provided proper protection.’’ Id., 465.

7 Davis testified to the following: ‘‘When an animal responds to temperature stress, in many ways they respond with their behavior . . . . A malamute or husky with a heavy coat . . . can go curl up in a snow bank and

be perfectly fine, but a small Chihuahua with almost no hair, stuck in a

small dark cage, has almost no behavioral way to respond to temperature

and he therefore is in danger at the temperatures that I experienced in that

building. Most of the small dogs that I picked up were quaking, shivering

violently, not just out of nervousness; I know the difference. These animals

were shaking because . . . with temperature stress [and] going into potential hypothermia, one of the first responses is shivering because the body

can no longer maintain its core temperature just by behavior by curling up

or . . . by finding bedding. At this point, the body starts shivering with

muscle to produce body heat to keep the core temperature up. Now this is

a problem when you’re little and thin because you can only shiver for so

long before you run out of energy, and at that point that’s when secondary

and tertiary problems with hypothermia evolve.’’