Opinion
2015 KA 0434
04-15-2016
STATE OF LOUISIANA v. RAMEL VARRICK JOHNSON
Warren L. Montgomery Matthew Caplan Covington, LA Counsel for Appellee, State of Louisiana Frank G. Desalvo New Orleans, LA Counsel for Defendant/Appellant Ramel Varrick Johnson
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany, State of Louisiana
Trial Court Number 544641
Honorable Peter J. Garcia, Judge Presiding
Warren L. Montgomery
Matthew Caplan
Covington, LA Counsel for Appellee,
State of Louisiana Frank G. Desalvo
New Orleans, LA Counsel for Defendant/Appellant
Ramel Varrick Johnson BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WHIPPLE, C.J.
The defendant, Ramel Varrick Johnson, was charged by bill of information with dogfighting, a violation of LSA-R.S. 14:102.5. The defendant entered a plea of not guilty, and was found guilty as charged following a trial by jury. The defendant was sentenced to a term of ten-years imprisonment at hard labor. The trial court suspended the sentence and imposed five years of probation under the following special conditions: one year in parish jail, a fine of $1,000.00 and costs, restitution of $4,933.90 to animal services, and the prohibition of the possession or ownership of dogs during probation. The defendant now appeals, assigning error to the sufficiency of the evidence to support the conviction. For the following reasons, we affirm the defendant's conviction and sentence.
STATEMENT OF FACTS
On Saturday, January 23, 2014, Tess Boudreaux, the Animal Control Supervisor at the St. Tammany Parish Department of Animal Services, responded to an anonymous complaint regarding the welfare of multiple pit bull dogs located at 37318 Powell Road in Slidell. Upon her arrival at the scene, Boudreaux observed some of the dogs and their unsuitable dwellings, but the owner of the property was not initially present. Through the assistance of other occupants in the area, Boudreaux was able to contact the owner of the dogs, who was referred to as "John," but was further identified as the named defendant herein. The defendant agreed to meet Boudreaux at the property within the hour. While waiting for the defendant to arrive, Boudreaux continued to observe some of the dogs in plain view, noted that one was severely injured, and contacted the St. Tammany Parish Sheriff's Office for assistance. Upon the defendant's arrival, he was questioned and the dogs were removed from the scene and transported to the Department of Animal Services. Cruelty charges and medical fees were assessed for the fifteen dogs in total that received animal services. Two of the dogs were saved, while the other thirteen were humanely euthanized due to their behavior and inability to pass temperament testing required for transfer or adoption.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant argues that the State did not present any evidence to prove beyond a reasonable doubt that he intentionally caused a dog to fight. The defendant concedes that the State presented evidence that some of the dogs exhibited injuries consistent with dogfighting, but contends that the State failed to present any evidence of an "organized event" as set forth in LSA-R.S. 14:102.5(B). The defendant concludes that no rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See LSA-C.Cr.P art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So. 2d 141, 144.
"Dogfighting" is defined in LSA-R.S. 14:102.5, in pertinent part, as follows:
A. No person shall intentionally do any of the following:
(1) For amusement or gain, cause any dog to fight with another dog, or cause any dogs to injure each other.(Emphasis added).
(2) Permit any act in violation of Paragraph (1) to be done on any premises under his charge or control, or aid or abet any such act.
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(5) Own, manage, or operate any facility kept or used for the purpose of dogfighting.
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(7)(a) Own, possess, keep, or train a dog for purpose of dogfighting.
(b) The following activities shall be admissible as evidence of a violation of this Paragraph:
(i) Possession of any treadmill wheel, hot walker, cat mill, cat walker, jenni, or other paraphernalia, together with evidence that the paraphernalia is being used or intended for use in the unlawful training of a dog to fight with another dog, along with the possession of any such dog.
(ii) Tying, attaching, or fastening any live animal to a machine or power propelled device, for the purpose of causing the animal to be pursued by a dog, together with the possession of a dog.
(iii) Possession or ownership of a dog exhibiting injuries or alterations consistent with dogfighting, including but not limited to torn or missing ears, scars, lacerations, bite wounds, puncture wounds, bruising or other injuries, together with evidence that the dog has been used or is intended for use in dogfighting.
B. "Dogfighting" means an organized event wherein there is a display of combat between two or more dogs in which the fighting, killing, maiming, or injuring of a dog is the significant feature, or main purpose, of the event.
The bill of information in this case specifically indicates the defendant was charged with one count of violating LSA-R.S, 14:102.5, by intentionally causing "any dog to fight with another dog" or causing "any dogs to injure each other."
Dogfighting requires only general criminal intent. LSA-R.S. 14:11; State v. Schneider, 2007-943 (La. App. 3rd Cir. 4/2/08), 981 So. 2d 107, 110, writ denied, 200800942 (La. 12/12/08), 997 So. 2d 558. "General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." LSA-R.S. 14:10(2). Moreover, dogfighting does not require direct evidence of an actual dogfight. Schneider, 981 So. 2d at 114.
Boudreaux noted that while waiting for the defendant to arrive at the scene, she observed several dogs (fifteen in total) that were chained up with short and/or heavy chains. Some of the chains had pad locks, while others had large round hooks. The dogs were able to move around in a 360-degree radius and each dog had access to a shelter. Boudreaux testified that based on the distance between the dogs, while they would fall just short of contact, they were likely to attempt to reach or "get at each other" given the mariner in which they were chained. Boudreaux took photographs at the scene depicting the dogs' living conditions, improper chaining, and concrete water bowls containing algae. While some of the dog shelters had hay in them, others were enclosed only in dirt, mud, and the dogs' own feces. One of the photographs depicts the overspill from a drainage located within close proximity of the dogs, which rendered the dogs susceptible to bites from flies and mosquitoes, and exposure to parasites due to insect bites. Other photographs depicted the debris on the property, and over-the-counter animal medications (including fly strike and wormer medicines) and syringes. Photographs of above-ground kennels (referred to as breed boxes) show that they contained old, dried and petrified feces, which indicated the possible presence of other animals that were no longer there and/or the relocation of some of the fifteen dogs that were present.
Boudreaux testified that one of the pit bulls was severely injured, emaciated, underweight, and could barely walk. Boudreaux later determined that this particular pit bull was named Voodoo (and was later assigned an identification number ending in 35). Boudreaux estimated the dog's age as about five years. Boudreaux noted that Voodoo's condition was worse than the other dogs. In particular, Voodoo had punctures on her front arms, bones protruding from her ribs, hips and legs, and her snout had patches of skinless areas where the skin appeared to have been rubbed off. Boudreaux further noted that Voodoo's canines had been filed down flat and smooth. In addition to the severely swollen punctures on the front of both of her front legs, she had a large mass on her lower abdomen. Surrounded by dog feces, Voodoo was housed in a barrel with a jagged tin top, such that there was a significant risk of the dog becoming tangled in the wood underneath the barrel or the heavy chain to which she was attached. Voodoo also had a long scar on her back where she appeared to have been burned by a hot substance being spilled on her back. Boudreaux testified that based on her observations and the attendant condition of the dog, Voodoo was severely neglected and had been used in dogfighting.
When the defendant arrived on the scene, he claimed that the dogs had just arrived two weeks ago and that he did not own them, as they were being periodically transported back and forth between his properly and his brother's home in Texas. The defendant stated that the dogs would be brought to Louisiana due to disputes between his brother and his brother's wife. However, Boudreaux concluded that the dogs had been present for longer than two weeks, noting that the 360-degree radius within which the dogs could move consisted of dirt and mud, while the rest of the property had high grass. Boudreaux stated that she had specifically questioned the defendant about Voodoo's condition. The defendant indicated that the wounds on the dog's front legs, which were secreting pus and open, could have possibly been the result of snake bites, but he was not certain of the cause.
Bolt cutters were needed to remove some of the dogs' collars and after all of the dogs were unchained, the chains were stretched out and measured. Boudreaux testified that although St. Tammany Parish requirements called for chains less than 1/8 of a dog's body weight and a minimum length of twelve feet, some of the chains used in this case were heavier than the dogs and shorter than twelve feet. Boudreaux took custody of the fifteen dogs, and they were transported to the Department of Animal Services, where they were vaccinated, photographed, assigned identification numbers, and examined by Dr. Gregory Labranche, a licensed veterinarian. Due to the severity of her condition, Voodoo was further examined by Dr. Kelly Ervina, an ER veterinarian at MedVet in Mandeville, and received round-the-clock treatment.
Boudreaux noted that the defendant's denial of ownership of the dogs was inconsistent with the evidence she later obtained. Specifically, Boudreaux obtained records of the Louisiana Society for the Prevention of Cruelty to Animals (LASPCA) in Jefferson Parish for a dog identified as an American pit bull, a black and white terrier named "Snow," with a large wound on its back, owned by the defendant. Based on the consistent medical history and description, Boudreaux identified the dog ("Snow") previously referred to as being Voodoo (number 35). "Blue," another dog removed from the defendant's premises in this case, was assigned an identification number ending in 41, and was the only recovered dog that had an implanted microchip in the back of its neck detected during routine scanning. Boudreaux described the microchip as a one-half-inch device implanted in an animal's neck that stores the animal's description and ownership information. Boudreaux obtained a photograph and the January 13, 2011 LASPCA report for Blue, which noted the date the microchip was implanted as a part of the LASPCA's routine practice, and indicated that the defendant was designated as the dog's owner. On cross-examination, Boudreaux confirmed that she could not be completely certain that Voodoo's back injury was caused by hot oil or another hot substance being poured on her back. However, she also stated that the injury she saw was inconsistent with a scrape from a knife or other object.
On redirect examination, Boudreaux was asked to discuss the specific indications of dogfighting. She noted that the manner in which the dogs were housed, i.e., one foot apart from one another, was common practice in dogfighting, in which a scratch line is drawn and the dogs are held by the collar before being released. She further testified that this practice entices and antagonizes the dogs, increasing their desire to attack each other and pull the cemented chains in an attempt to reach each other, which in turn builds their upper body strength. Boudreaux further testified that the hair and the skin missing from Voodoo's snout was consistent with the practice in dogfighting of duct-taping certain dogs' faces so that they cannot bite or fight back. She noted that Voodoo's injuries to her head, ears, severe swelling on both of her front legs, punctures in the wounds, and missing skin and hair on her chest and front legs were all consistent with dogfighting. She further noted that the puncture wounds were not consistent with snake bites. Boudreaux further testified that the scar down Voodoo's back was consistent with the practice of pouring a hot substance on dogs who fail to perform or electrocuting them. Boudreaux classified Voodoo as a bait dog, given the indications that her mouth had been taped and her teeth had been filed down. She noted that bait dogs are commonly used to fight prized dogs, who typically do not receive injuries while fighting a bait dog. The filing of canines allows bait dogs to grip and lock their jaws to hold onto an animal without ripping the skin. Once a dog's canine teeth are smoothly filed, they have no use of their main weapon when participating in a dogfight. Boudreaux stated that there was no doubt in her mind that Voodoo had been involved in dogfighting. She also noted that none of the other dogs had their teeth filed down, although some of them had markings on their front forearms and missing patches of hair from their forearms, chest, ears, and head, injuries which could have been caused by participation in dogfighting, though other causes could not be ruled out. Boudreaux noted that Voodoo was one of the two dogs who passed the temperamental test and was transferred to another facility. Boudreaux explained that bait dogs were commonly more submissive and, thus, less aggressive than other dogs used in dogfighting.
Dr. Kelly Ervina, an expert in the field of emergency veterinarian medical care, testified regarding the medical examinations and records in evidence, in particular Voodoo's records. Dr. Ervina noted that Voodoo had an abdominal wall hernia (a tear in the body wall usually caused by blunt force trauma), puncture wounds with pus drainage, possible fracturing and arthritis (uncommon for a dog her age), a swollen leg, multiple scars, and she was running a high fever when she arrived. She also had pain when her left elbow or knees were touched. She noted that the dog was sick, had multiple wounds, and was very dehydrated, which had caused skin tinting. Dr. Ervina examined her gums for dryness, and she was assessed with a seven percent dehydration score, which number ranges from five to twelve. Voodoo was depressed, stoic, underweight, and unhealthy. Specifically, she weighed twenty-two pounds (later noted as 27.2), though the normal weight for a pit bull Voodoo's age (which Dr. Ervina estimated as three years old, a young adult) was at least forty pounds.
Dr. Ervina also noted that Voodoo's canines appeared to have been filed down as well as the incisors, an abnormal finding. She noted that the dog's incisors were symmetrically worn down, as though intentional, as opposed to normal wear from chewing hard objects, which would result in varied levels of wearing. In her opinion, in part based on her training in veterinary school, she recognized this condition as consistent with that of a bait dog, unable to injure dogs that were being trained. Dr. Ervina reiterated that Voodoo, as common among bait dogs, was stoic and non-aggressive. Voodoo's lymph nodes were enlarged, probably due to infection. The dog required surgery to adequately address the hernia. On a scale that classified nine as obese, Voodoo was classified as a one, a malnourished, "horrible body condition." Dr. Ervina described Voodoo's score of one as generous considering her muscular skeletal, emaciated body condition with bony protuberances.
Regarding the large scar down her back, Dr. Ervina stated that it could have been caused from thermal necrosis from being out in the sun, noting that it was consistent with a burn injury. Dr. Ervina testified that the multiplicity of Voodoo's scars, and the fact that the scars ranged from old to recent (the chronicity), were all indications that the dog had been in dog fights over a lengthy period consisting of several months or years. Dr. Ervina did not see any injuries that were consistent with a snake bite. In that regard, Dr. Ervina specifically noted that snake puncture wounds are typically one to two millimeters in diameter and cause significant bruising, while Voodoo had one or two puncture wounds (one described as large) consistent with a wound that another dog with normal teeth (as opposed to snake fangs) or a similar animal would cause.
The defendant testified that he had a history of raising dogs, including pit bulls, German Shepherd dogs, Dobermans, and Rottweilers. The defendant indicated that Voodoo's given name was "Tizzet," and testified that he owned Tizzet along with two other dogs of the fifteen seized in this case, namely "Blue" and "Billy." When questioned about the other dogs, he stated that his brother owned them, or alternatively, that he was not familiar with the dogs. Specifically regarding the dog referred to herein as Voodoo, the defendant stated that he obtained Tizzet after Hurricane Katrina from the LASPCA. He noted that the LASPCA later came to his home to question him after the dog was injured when the defendant's grandmother accidentally splattered grease on her back while attempting to pour it outside. He noted that even after he was questioned, he was allowed to keep the dog. He admitted that all three dogs were taken from him in 2010 or 2011, due to complaints regarding incidents that occurred in Orleans Parish. However, he claimed that after he went to court regarding those incidents, the cases were dismissed. He stated that he had purchased Blue for his eight-year-old son and that Blue, and presumably the other two dogs, were located at his son's mother's house (where the defendant did not reside) at the time of the complaints.
The defendant claimed that due to the dogs being checked constantly, which the defendant referred to as harassment, he sent the dogs to stay with his brother in Texas from roughly 2011 until the brother went to jail in 2014, at which time the defendant retrieved the dogs seized in this case in two trips. The defendant noted that during that approximately three-year time period, his brother was breeding dogs that his brother used for hunting. The defendant testified that he did not have a close relationship with his brother, who did "a bunch of crazy things" of which the defendant did not approve. He testified that he had no knowledge of his brother ever being arrested for dogfighting. When the defendant retrieved the dogs, he brought them back to his brother's family property in Slidell where he chained them and took care of them on a daily basis, including feeding and medicating them. The defendant stated that he retrieved the smallest dogs on the first trip, noting that they appeared to be lacking food.
The defendant stated that when he went back for the second trip to retrieve the rest of the dogs, including Voodoo, he noticed that Voodoo had killed a snake, and he assumed that Voodoo was bitten in the process. He stated that he took her to see a vet in Killeen, Texas, and that he provided the LASPCA with documentation of that visit (consisting of a letter that he asked the doctor to write). He stated that all of the dogs were skinny because they did not have food to eat after his brother went to jail. The defendant stated that he did not deny ownership of the dogs when he was questioned by Boudreaux and that he has never been charged with dogfighting. Although he initially stated that he was not familiar with some of the dogs, he conceded during cross-examination that all of the dogs that were seized in this case had been transported by him from his brother's house in Texas to the Slidell property, purportedly two weeks prior to the seizure by Boudreaux. The defendant testified that other dogs had previously been kept at that location, and that the dogs in this case were only periodically brought back to Slidell during the three-year time period that they mainly stayed with his brother in Texas. Regarding the condition of Voodoo's teeth, the defendant stated that she was ten years old and that her teeth were naturally worn down. The defendant denied that the dogs had ever been fought.
Terrance Camper, who lived across the street from the scene in Slidell, testified that he was aware of the fact that the defendant used the property for the dogs and that he was allowed to keep his hunting dogs there as well. He testified that the dogs seized in this case had been on the property for about two or three weeks and that he had never seen anybody fight dogs on the property, nor did he have any personal knowledge of the defendant fighting dogs. Charles Camper, a friend of the defendant, who had known him for three years, similarly testified that he also used the property for his hunting dogs and that he had never witnessed any dogfighting on the property. He testified that Voodoo's teeth appeared to be rotten or worn down as opposed to purposefully filed down.
During the State's rebuttal, Dr. Gregory Labranche, an expert in veterinary medicine, provided testimony regarding Voodoo's injuries that was consistent with Dr. Ervina's testimony. Dr. Labranche testified that the condition of Voodoo's teeth was not consistent with normal wear, noting that the teeth were flattened. He further testified that the puncture wounds were inconsistent with a snake bite, noting that snakes produce smaller punctures and that the venom causes more tissue damage. He stated that it would not be common practice for a veterinarian to write a letter like the one purportedly requested and received by the defendant in Killeen, Texas, and that a dog in Voodoo's condition would have routinely been hospitalized after examination, and her condition would have been immediately reported to the police. Dr. Labranche further testified that Voodoo did not appear to be ten years of age, based on her hair coloring and the absence of tarter and calculus buildup on her teeth.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. Thus, an appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So. 2d 932, 939, writ denied, 2002-0399 (La. 2/14/03), 836 So. 2d 135.
Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of dogfighting, and the defendant's identity as the perpetrator of that offense. Although there were no witnesses to any actual dogfight, LSA-R.S. 14:102.5(A)(1) does not require direct evidence of an actual dogfight. The guilty verdict in this case indicates the jury rejected the defendant's hypothesis of innocence, including his claims that Voodoo was elderly, that her teeth were flattened from normal wear and tear, and that the wounds resulted from an attack by a snake. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So. 2d 676, 680 (La. 1984). No such hypothesis exists in the instant case. Additionally, the verdict indicates the jury rejected the testimony offered by the defendant and accepted the testimony offered against him. On review, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. As noted above, as the trier of fact, the jury was entitled to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La. App. 1st Cir. 3/27/97), 691 So. 2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So. 2d 1331.
Further, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented herein. See Ordodi, 946 So. 2d at 662. The injuries to the dogs, and those to Voodoo in particular, included puncture wounds, scars, and other injuries that were shown to be consistent with dogfighting. Moreover, the dogs were kept in an environment that was particularly conducive to dogfighting, including the type of chaining and the distancing of the dogs, which encouraged aggression. Moreover, the state presented testimony indicating that Voodoo had specifically been trained or used as a bait dog. Specifically, Voodoo's teeth were altered in a manner consistent with the use of the dog as a bait dog for dogfighting. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam).
Accordingly, we find no merit to the defendant's assignment of error, and thus, we affirm the defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.