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observing that, "when terms in a statute are terms that, in their common usage, can be understood by the average person, a statute is not void for vagueness for failing to define the terms"
Summary of this case from In re Estate of BashinskyOpinion
CR-17-0768
02-07-2020
Jerome Wesley HUGHES v. STATE of Alabama
Allen K. Mitchell, Dothan, for appellant. Steve Marshall, atty. gen., and Robin D. Scales, atty. gen., for appellee.
Allen K. Mitchell, Dothan, for appellant.
Steve Marshall, atty. gen., and Robin D. Scales, atty. gen., for appellee.
Note from the reporter of decisions: On December 13, 2019, the Court of Criminal Appeals remanded the case by order.
MINOR, Judge.
Jerome Wesley Hughes was convicted of six counts of first-degree cruelty to a dog, see § 13A-11-241(a), Ala. Code 1975, and of one count of second-degree cruelty to a dog, see § 13A-11-241(b), Ala. Code 1975. For the first-degree cruelty-to-a-dog convictions, Hughes was sentenced to concurrent terms of 5 years in prison, split to serve 100 days in community corrections. For his second-degree cruelty-to-a-dog conviction, Hughes was sentenced to serve 12 months in the Houston County jail. He raises four issues on appeal: (1) whether § 13A-11-241(a), Ala. Code 1975, is unconstitutionally vague; (2) whether the circuit court erred in admitting evidence of a subsequent remedial measure; (3) whether Hughes was denied his fundamental right to testify in his own defense at trial; and (4) whether there was sufficient evidence to convict him of six counts of first-degree cruelty to a dog. For the reasons discussed below, we hold that there is no merit to any of the issues that Hughes raises on appeal.
For each first-degree cruelty-to-a-dog conviction the circuit court ordered Hughes to pay a $100 crime victims' compensation assessment, a $750 fine, a $150 bail-bond fee, and court costs. For the second-degree cruelty-to-a-dog conviction, the circuit court ordered Hughes to pay a $50 crime victims' compensation assessment, a $500 fine, a $100 bail-bond fee, and court costs. (C. 646-60.) Although the circuit court split Hughes's sentences, it did not order a term of probation for each sentence. Thus, on December 13, 2019, this Court remanded this matter for the circuit court to impose sentences that comply with § 15-18-8(b), Ala. Code 1975. On remand, the circuit court ordered a term of probation of four years for each first-degree cruelty-to-a-dog conviction.
We address the issues on appeal in a different order than Hughes discusses them in his brief.
Facts and Procedural History
In October 2014, Hughes's ex-wife, Valeria, contacted the Cottonwood Police Department to do a welfare check on her son, who is also Hughes's son. There was an ongoing custody dispute between Hughes and Valeria, and the welfare check was to make sure that the child was safe. Valeria also complained that there were animals at Hughes's house that were not being treated properly.
Colonel Jim Smith, the Public Safety Director for the Cottonwood Police Department, performed a welfare check at Hughes's residence on October 9, 2014. Col. Smith confirmed that Hughes's son was okay, but he noticed that there were dogs inside two cages on the front porch and that the cages had urine and feces in the food and water bowls. Col. Smith went back to Hughes's residence the next day for another welfare check, but no one was at home. During that visit Col. Smith saw several dogs with no rabies tags.
Officer Mitch Murkerson of the Cottonwood Police Department testified that he went to Hughes's residence on October 10, 2014, and that he saw a large dog chained to a tree in the front yard. That dog's mammary glands were "very swollen, inflamed." Officer Murkerson noticed "a couple of other dogs" that were "running loose." (R. 144-45.) Officer Murkerson testified that he saw a water bowl but that he did not recall seeing any food for the dogs.
A few days later Mike Meadows, who was at that time a police officer with the Cottonwood Police Department, went to Hughes's residence. Officer Meadows saw a dog tied to a tree, several white "bulldog-type dogs" roaming free in the front yard, and a French bulldog in a crate on the porch. The crate and the water bowl inside the crate had feces in them. No one answered the door, so Officer Meadows put a notice on Hughes's door advising Hughes that officers had observed emaciated dogs in cages without food or water and without rabies tags and instructing Hughes to correct the issues by October 21, 2014. A copy of the notice was also mailed to Hughes's residence.
On October 16, 2014, Hughes called Col. Smith about the notice that he had received. Col. Smith testified that he "encouraged [Hughes] to try to resolve the issues that we identified and take care of the animals." (R. 278.) Hughes contacted Col. Smith a few other times in October and November to advise Col. Smith of the steps he had taken to care for the dogs and to ask for additional time to remedy the situation.
On November 21, 2014, Officer Murkerson was on patrol when he saw a dog in the roadway that he recognized from Hughes's property. The dog "appeared thin" but was mobile and did not appear to be sick. (R. 147.) Officer Murkerson went to Hughes's house to return the dog, but no one came to the door. He saw a small black dog in a cage on the front porch. The cage was full of feces. He also saw, tied to a tree in the front yard, the same dog that had been tied to that tree over a month earlier.
Col. Smith testified that in December 2014 the temperature had dropped and Hughes had still not provided the dogs with adequate shelter and was still not in compliance with the notice, so he decided to obtain a search warrant to go onto the property. Before he did so, Col. Smith contacted the Humane Society of the United States ("H.S.U.S.") and, on behalf of the Town of Cottonwood, entered into an agreement with H.S.U.S. for their assistance in removing the dogs from Hughes's property and for caring for the dogs after removal.
On December 30, 2014, while arrangements were still being made to line up a place for the dogs to be housed once they were removed from the property, Officer Meadows went back to Hughes's property in response to receiving another complaint. Officer Meadows testified that he observed dogs with their bones "showing through their rib and their backbone." Later that same afternoon, with permission from Hughes's neighbor, Officer Meadows went onto Hughes's neighbor's property to view the back part of Hughes's property and to count and photograph the dogs on Hughes's property. Officer Meadows estimated that he saw "[a]nywhere from 70 to 100 dogs" on Hughes's property. (R. 192.)
The search warrant was executed at Hughes's property on January 12, 2015. Col. Smith testified that they found several dogs outside that looked like "skin and bones." (R. 292.) He testified that the cages for some of the dogs were too small based on the size of the dogs. He testified that inside the house there was a large number of puppies in the back of the house between the washer and dryer. There was "a lot of dog feces and urine present," and the puppies appeared to be "skin and bones." (R. 290-91.) Officer Murkerson testified that the inside of the house was a "nasty environment" and "smelled like urine, feces." He testified that there were dog feces "all over the floor." (R. 161-62.) Chris Schindler testified that in January 2015 he was employed with H.S.U.S. He testified that on January 12, 2015, he, along with "probably several dozen" other staff and experts from H.S.U.S.'s Animal Cruelty Rescue and Response Team, participated in the removal of the dogs from Hughes's property. Schindler testified that there were several dogs on the property whose ribs and backbones were showing. He testified that "many of the dogs did not have water and food." Although a few of the dogs running loose outside had clean water, most of the animals had either green, dirty water or none at all. Schindler testified that, although they found three 50-pound bags of dog food in the living room, the food was not accessible by the dogs and the dog food in the bags was enough to feed all the dogs on the property for only one day.
Schindler testified that most of the dogs outside had inadequate shelter. He testified that some of the dogs had sought shelter in "an abandoned-looking vehicle" and were "huddled up trying to get warm." (R. 349-50.) He testified that other dogs had access to plastic barrels for shelter but that, considering the weather conditions, the barrels would have provided inadequate shelter because the barrels, which were lying directly on the frozen ground, would have been the same temperature as the frozen ground.
Dr. Mark Colicchio, a veterinarian, testified that, at Schindler's request, he was present at Hughes's house for the removal of the dogs. Dr. Colicchio testified that he saw "no food whatsoever" for the dogs outside. (R. 483.) He testified that the shelter provided for the dogs outside was inadequate. The only clean water Dr. Colicchio saw for the dogs outside was in a container near the front of the house, but that water was accessible only to the dogs running loose on the property and not to the dogs that were in pens or cages. Dr. Colicchio testified that inside the house there were feces and urine "all over the place." He testified that the urine "was emitting an ammonia smell that is toxic to the animals" and that "my first impression was you know, the health of the animals, in my opinion, was vastly compromised by that." (R. 487.)
In all, 67 dogs were seized from Hughes's property. Most of the dogs were of the "Dogo Argentino" breed, which Dr. Colicchio testified is "designed to be [a] cross of a Cordoba fighting dog." (R. 480.)
Dr. Colicchio conducted an "in-field examination" of each of the dogs. Each dog was given an identifier based on where on the property the dog was located. For each dog that he examined, Dr. Colicchio completed an in-field worksheet that he used to, among other things, score each dog on a scale of one to nine. Dr. Colicchio also examined the dogs the following day after the dogs had been taken to Lake City, Florida, where H.S.U.S. had made arrangements for the dogs to be housed.
Dr. Colicchio testified that the normal weight range for an adult Dogo Argentino is around 88 pounds. (R. 480-81.) Regarding the 7 Dogo Argentino dogs that are the subject of this appeal, he testified that the estimated weight of those dogs ranged from 15 pounds to 55 pounds. Most of the dogs had a body score of one, which Dr. Colicchio testified is the lowest score on the range and means that the dog was emaciated. The remaining dogs each had a body score of two, which means that those dogs were "very thin." Dr. Colicchio testified that a score of one, two, or three is considered unhealthy. Dr. Colicchio testified that all the dogs had severe muscle loss and that some of the dogs had no muscle mass. Many of the dogs had wounds or scars, and some of them were infested with fleas. Dr. Colicchio testified that the dogs were in a painful condition that was prolonged and that had not developed over a matter of days.
Dr. Colicchio testified that, "based on what I saw of all the dogs that I examined, everything that I saw would basically be taken care of by giving them food and water." (R. 538.) He testified that, "[b]ecause of my assessment, all of the dogs that I examined in the field were in a condition, if they were provided food and water, it would have resolved the problem they had." (R. 576.) Dr. Colicchio testified that, although none of the dogs required emergent care and their primary need was food and water, if the dogs' conditions were not treated, the conditions would still be detrimental to their lives.
David Jefferson and Dr. Earnest Rogers testified in Hughes's defense. Jefferson testified that he worked at the Piggly Wiggly Feed Store and that at the end of 2013 and in 2014 Hughes came into the Piggly Wiggly store "[h]alf a dozen or so" times to purchase dog food, and that each of those times Hughes purchased 20 to 40 50-pound bags of dog food. (R. 655-68.)
Dr. Rogers, a veterinarian, testified that a thin or emaciated dog is not per se sick or unhealthy. He testified that "[t]here can be a number of different issues that can affect an animal that's thinner." He did not deny that many of the dogs were "skinny," but testified that there was nothing to indicate that the dogs were unhealthy. He also testified that, absent a disease process, there is nothing inherently painful about being "skinny." Dr. Rogers testified that "severe, severe dehydration where the animal can't even stand up would be painful. But these dogs don't appear to be at that level of compromise." Dr. Rogers also testified that "weight and body-condition score does not relate to the health of the animal" and that "a skinny dog can be healthy and an ideal dog, which would be a five out of nine, can be very sick." (R. 691-92.) Regarding the dogs' flea infestation, Dr. Rogers testified that fleas "can be itchy, but they are not painful." (R. 683.)
On January 7, 2016, a Houston County grand jury indicted Hughes on, among other things, six counts of first-degree cruelty to a Dogo Argentino dog (case nos. CC-16-300; CC-16-303; CC-16-305; CC-16-311; CC-16-323; and CC-163-324) and one count of second-degree cruelty to a Dogo Argentino dog (case no. CC-16-372). The jury trial began on March 5, 2018. After the State rested, the circuit court denied Hughes's motion for judgment of acquittal as to the cases involving the seven Dogo Argentino dogs. The jury found Hughes guilty of second-degree cruelty to a dog in case no. CC-16-372 and guilty of first-degree cruelty to a dog in case nos. CC-16-300; CC-16-303; CC-16-305; CC-16-311; CC-16-323; and CC-16-324. Hughes filed a motion for a new trial, and, after a hearing on that motion, the motion was denied by operation of law. Hughes timely filed a notice of appeal.
The circuit court granted Hughes's motion for judgment of acquittal as to a case involving a German Shepherd dog.
The jury returned a verdict of not guilty as to a case involving a French bulldog that is not the subject of this appeal.
I.
Hughes argues that the statute under which he was convicted of first-degree cruelty to a dog, § 13A-11-241(a), Ala. Code 1975, is unconstitutionally vague because, he says, "it fails to describe or define the proscribed conduct of inhumane treatment nor does the statute define gross physical abuse." (Hughes's brief, p. 56.) He argues that the statute is vague because, although it prohibits the intentional "torture" of a dog, the definition of "torture" provided in § 13A-11-240, Ala. Code 1975, does not include a definition of two terms--"inhumane treatment" and "gross physical abuse"--that are included in the definition of "torture."
"The void-for-vagueness doctrine prohibits the government from imposing sanctions ‘under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.’ " Welch v. United States, 578 U.S. 120, ––––, 136 S. Ct. 1257, 1262, 194 L. Ed. 2d 387 (2016) (quoting Johnson v. United States, 576 U.S. 591, 595, 135 S. Ct. 2551, 2556, 192 L. Ed. 2d 569 (2015) ).
" ‘ "The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963).
" ‘ "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 811, 98 L. Ed. 989, 996 (1954). A vague statute does not give adequate ‘notice of the required conduct to one who would avoid its penalties,’ Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S. Ct. 329, 330, 96 L. Ed. 367, 371 (195[2]), is not ‘sufficiently focused to forewarn of both its reach and coverage,’ United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S. Ct. at 598, 9 L. Ed. 2d at 566, and ‘may trap the innocent by not providing fair warning,’ Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222, 227–28 (1972)." ’ "
Vaughn v. State, 880 So. 2d 1178, 1194-95 (Ala. Crim. App. 2003) (quoting McCall v. State, 565 So. 2d 1163, 1165 (Ala. Crim. App. 1990), quoting in turn McCrary v. State, 429 So. 2d 1121, 1123-24 (Ala. Crim. App. 1982) ).
" ‘ "To withstand a challenge of vagueness, a statute [or ordinance] must: 1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and, 2) provide explicit standards to those who apply the laws." ’ Moore v. City of Montgomery, 720 So. 2d 1030, 1032 (Ala. Crim. App. 1998) (quoting Culbreath v. State, 667 So. 2d 156, 158 (Ala. Crim. App. 1995) )."
Wallen v. City of Mobile, 270 So. 3d 1190, 1195 (Ala. Crim. App. 2018).
"The judicial power to declare a statute void for vagueness ‘should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended.’ Jansen v. State ex rel. Downing, 273 Ala. 166, 170, 137 So. 2d 47, 50 (1962)."
Vaughn, 880 So. 2d at 1195–96. "The one challenging a statute or ordinance bears the burden of demonstrating that the statute or ordinance should be declared unconstitutional." Wallen, 270 So. 3d at 1195. And it is well settled that "a person challenging the constitutionality of a statute as applied to him ‘bears the burden of proving that [the statute] is unconstitutional as applied to his conduct.’ " Wesson v. State, 208 So. 3d 1160, 1162 (Ala. Crim. App. 2015) (quoting Powell v. State, 72 So. 3d 1268, 1278 (Ala. Crim. App. 2011) ). Section 13A-11-241(a), Ala. Code 1975, provides: "A person commits the crime of cruelty to a dog or cat in the first degree if he or she intentionally tortures any dog or cat ...." The word "torture" is defined in § 13A-11-240, Ala. Code 1975:
"(a) The word ‘torture’ as used in this article shall mean the act of doing physical injury to a dog or cat by the infliction of inhumane treatment or gross physical abuse meant to cause said animal intensive or prolonged pain or serious physical injury, or thereby causing death due to said act."
(Emphasis added.) Hughes argues that because the terms "inhumane treatment" and "gross physical abuse" are not defined, he "cannot know" what the prohibited conduct is and the jury is left, he says, "to imagine and speculate" as to what these terms mean. (Hughes's brief, p. 60.) We disagree.
"The mere fact that a statute contains a term that is not specifically defined in the statute or statutory scheme does not automatically render the statute void for vagueness. See, e.g., Scott v. State, 917 So. 2d 159 (Ala. Crim. App. 2005) (holding that § 13A–12–200.11, Ala. Code 1975, that part of the Alabama Anti–Obscenity Enforcement Act that prohibits the display of genitals, etc., for entertainment purposes, was not void for vagueness, even though the terms ‘business establishment,’ ‘for entertainment purposes,’ and ‘allow’ were not specifically defined in the Criminal Code); State v. Randall, 669 So. 2d 223, 226 (Ala. Crim. App. 1995) (holding that Alabama's stalking law, § 13A–6–90 et seq., Ala. Code 1975, was not void for vagueness, even though the terms ‘repeatedly’ and ‘series’ were not specifically defined in the statute); Musgrove v. State, 519 So. 2d 565, 582–83 (Ala. Crim. App.), aff'd, 519 So. 2d 586 (Ala. 1986) (holding that the kidnapping statute, § 13A–6–43, Ala. Code 1975, was not void for vagueness, even though the term ‘terrorize’ was not specifically defined in the statute); and Farris v. State, 432 So. 2d 538, 539–40 (Ala. Crim. App. 1983) (holding that § 13A–7–44, Ala. Code 1975, criminal possession of explosives, was not void for vagueness, even though the term ‘explosives’ was not specifically defined in the statute)."
Sellers v. State, 935 So. 2d 1207, 1211–12 (Ala. Crim. App. 2005). See also Scott & Scott, Inc. v. City of Mountain Brook, 844 So. 2d 577, 589 (Ala. 2002) (quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So. 2d 271, 275 (1963) ) (" ‘Mere difficulty of ascertaining its meaning or the fact that it is susceptible of different interpretations will not render a statute or ordinance too vague or uncertain to be enforced.’ "). When interpreting undefined words in a statute, "this Court must read the statute as a whole because statutory language depends on context .... [W]hen a term is not defined in a statute, the commonly accepted definition of the term should be applied."). Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So. 2d 513, 517 (Ala. 2003).
After carefully reviewing § 13A-11-241, Ala. Code 1975, we conclude that it is not unconstitutionally vague because it sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the statute prohibits. Although the terms "inhumane treatment" and "gross physical abuse" are not defined, in the context of § 13A-11-240(a), a person of ordinary intelligence should know that intentionally withholding necessary food, water, shelter, and medical treatment from a dog is inhumane treatment meant to cause the dog intensive or prolonged pain or serious injury.
Hughes relies upon City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983), overruled on other grounds by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), to argue that a statute that does not define the word "inhumane" is unconstitutionally vague. In Akron, a city ordinance that was passed to regulate abortions required that any physician performing an abortion must " ‘insure that the remains of the unborn child are disposed of in a humane and sanitary manner.’ " Akron, 462 U.S. at 424 n. 7, 103 S. Ct. at 2489 n. 7. In affirming that part of the judgment of the Sixth Circuit Court of Appeals that had found that the word "humane" was impermissibly vague as a definition of conduct subject to criminal prosecution, the United States Supreme Court stated:
"Akron contends that the purpose of § 1870.16 is simply ‘ "to preclude the mindless dumping of aborted fetuses on garbage piles." ’ Planned Parenthood Ass'n v. Fitzpatrick, 401 F. Supp. 554, 573 (E.D. Pa. 1975) (three-judge court) (quoting State's characterization of legislative purpose), aff'd mem. sub nom. Franklin v. Fitzpatrick, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976). It is far from clear, however, that this provision has such a limited intent. The phrase ‘humane and sanitary’ does, as the Court of Appeals noted, suggest a possible intent to ‘mandate some sort of "decent burial" of an embryo at the earliest stages of formation.’ [Akron Ctr. for Reprod. Health, Inc. v. City of Akron ] 651 F.2d [1198] at 1211 [(6th Cir. 1981)]. This level of uncertainty is fatal where criminal liability is imposed. See Colautti v. Franklin, 439 U.S. 379, 396, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). Because § 1870.16 fails to give a physician ‘fair notice that his contemplated conduct is forbidden,’ United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954), we agree that it violates the Due Process Clause."
Akron, 462 U.S. at 451–52, 103 S. Ct at 2503-04. But the fact that in Akron the word "humane" was found to be unconstitutionally vague in the context of a city ordinance regulating the disposal of the remains of an unborn child does not mean that the term "inhumane treatment" in an animal-cruelty statute is vague and would not put a person of ordinary intelligence on notice of what the statute prohibits. "When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context." Bean Dredging, 855 So. 2d at 517 (emphasis added). Here, an average person should know, in the context of the statute, that "inhumane treatment" and "gross physical abuse" includes the intentional withholding of food, water, shelter, and medical treatment from a dog. And when terms in a statute are terms that, in their common usage, can be understood by the average person, a statute is not void for vagueness for failing to define the terms. Powell v. State, 72 So. 3d 1268, 1275 (Ala. Crim. App. 2011). Thus, we hold that § 13A-11-241(a), Ala. Code 1975, is not unconstitutionally vague.
II.
Hughes contends that the circuit court erred by admitting photographs showing each of the dogs before and after the dogs were removed from Hughes's property. Hughes contends that the photographs--each of which showed a specific dog in January 2015 alongside a photograph of that same dog in July 2015, after it had been in the custody of H.S.U.S.--were evidence of "subsequent remedial measures" and should have been excluded under Rule 407, Ala. R. Evid. He argues, in what he characterizes as a matter of first impression, that Rule 407 prohibits the admission of evidence of subsequent remedial measures in criminal cases.
Rule 407, Ala. R. Evid., provides:
"When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."
(Emphasis added.)
We note, initially, that what Hughes is asking this Court to do is to hold, as a matter of first impression, that the circuit court abused its discretion when it overruled his objection to the photographs on the basis that they were evidence of subsequent remedial measures that are, Hughes says, inadmissible under Rule 407, Ala. R. Evid. (Hughes's brief, p. 55.) But he admits that "[t]here is no case in Alabama that discusses subsequent remedial measures in a criminal case." (Hughes's brief, p. 53.) A circuit court has broad discretion in ruling on the admissibility of evidence, see, e.g., Scott v. State, 163 So. 3d 389 (Ala. Crim. App. 2012), and we are not inclined to hold that a circuit court abused its discretion in admitting evidence that neither this Court nor the Alabama Supreme Court has held to be inadmissible.
But even if this Court were inclined to hold, as a matter of first impression, that Rule 407 applies in criminal cases to exclude evidence of subsequent remedial measures, Hughes's argument would still fail because the "subsequent remedial measures" in this case--that is, the rehabilitation of the dogs--were undertaken by H.S.U.S., not Hughes.
Both Hughes and the State cite United States v. DSD Shipping, AS, No. CR 15-00102-CG, April 6, 2016) (S.D. Ala. 2016) (not reported in F. Supp. 3d), in which the United States District Court for the Southern District of Alabama granted the defendant's motion to exclude evidence of a subsequent remedial measure in a criminal prosecution against the defendant for violating the International Convention for the Prevention of Pollution from Ships ("MARPOL") and the Act to Prevent Pollution from Ships ("APPS"). The district court in DSD Shipping held that, although its applicability in criminal cases is unlikely to arise often, Rule 407, Fed. R. Evid., applies in criminal cases:
"The Court would agree that the possibility that subsequent remedial measures will be taken does not arise under most criminal contexts. There simply is no way for a party to do something to alleviate the danger or eliminate the possibility of future harm in most criminal cases. However, where, as here, subsequent remedial measures are possible in a criminal case, Rule 407[, Fed. R. Evid.,] does not state that the case is excluded from its application."
The Advisory Committee's Notes to Rule 407, Ala. R. Evid., discuss the applicability of Rule 407 to remedial measures undertaken by someone other than the defendant.
"The Committee recognizes that the overwhelming body of federal caselaw holds that Federal Rule 407 does not require exclusion of evidence of (1) subsequent remedial measures made by nonparties or (2) subsequent remedial measures that were involuntarily undertaken or performed, and that such caselaw constitutes persuasive authority for the interpretation of Alabama's Rule 407. See Ala. R. Evid. 102 (Advisory Committee's Notes (‘These rules have been modeled ... after the Federal Rules of Evidence ... Cases interpreting
the federal rules ... are persuasive ... authority before the Alabama courts.’); Ex parte Lawrence, 776 So. 2d 50, 53 (Ala. 2000) (construing Rule 404(b)) (‘The Advisory Committee Notes to the federal rules are persuasive authority in our interpretation of the Alabama rules.’)."
Advisory Committee's Notes to Amendment to Rule 407 Effective October 1, 2013. (Emphasis added.) Thus, evidence of any subsequent measures taken by H.S.U.S. to rehabilitate the dogs would not fall within the scope of Rule 407, Ala. R. Evid.
Hughes argues that H.S.U.S. "[a]cted as an agent of the State" when H.S.U.S. entered into an agreement with the Town of Cottonwood to remove the dogs from Hughes's property and when H.S.U.S. actually removed the dogs from Hughes's property, transported them to another state, and cared for the dogs after they had been removed from Hughes's property. (Hughes's reply brief, pp. 12-14.) Thus, Hughes argues, the body of federal caselaw holding that Rule 407 does not require the exclusion of evidence of subsequent remedial measures by nonparties does not apply here, where, Hughes says, H.S.U.S. was acting as an agent of the State. But in Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293 (11th Cir. 2007), the United States Court of Appeals for the Eleventh Circuit held, as a matter of first impression, that Rule 407, Fed. R. Evid., does not apply to repairs made by someone other than the defendant. Millennium Partners, 494 F.3d at 1302-03 (" Rule 407[, Fed. R. Evid.,] does not apply to a remedial measure that was taken without the voluntary participation of the defendant."). Thus, the circuit court did not abuse its discretion in admitting the before-and-after photographs of the dogs.
Hughes also argues that "[t]he admission of the photographs of the remediated dogs was more prejudicial than probative and should not have been admitted to influence the jury in the same way the trial court was influenced." (Hughes's brief, p. 55.) Hughes does not provide any support for this argument. This portion of Hughes's brief does not comply with Rule 28(a)(10), Ala. R. App. P. Rule 28(a)(10) requires arguments in a brief to contain "the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on."
"It is well settled that ‘[r]ecitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.’ Hamm v. State, 913 So. 2d 460, 486 (Ala. Crim. App. 2002). ‘An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument.’ Ex parte Riley, 464 So. 2d 92, 94 (Ala. 1985) (citations omitted). ‘When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research.’ City of Birmingham v. Business Realty Inv. Co., 722 So. 2d 747, 752 (Ala. 1998)."
Franklin v. State, 23 So. 3d 694, 703 (Ala. Crim. App. 2008). Because this portion of Hughes's brief does not comply with Rule 28(a)(10), this argument is waived.
III.
Hughes argues that his trial counsel was ineffective because, Hughes says, his trial counsel told him that he would not testify during the trial, even though his trial counsel knew that Hughes wanted to testify on his own behalf.
Hughes was represented at trial by his wife, Ruth Robinson, and by James Ransom. On the third day of trial, after the State had rested and after the circuit court had denied Hughes's motion for a judgment of acquittal, the circuit court asked Ransom how many witnesses the defense intended to present. Ransom responded, "At least three." (R. 653.) The defense then presented the testimony of two witnesses, David Jefferson and Dr. Earnest Rogers. After Dr. Rogers's testimony concluded and the circuit court instructed the defense to call its next witness, Ransom asked the circuit court for a hearing outside the presence of the jury. The following exchange occurred:
Robinson entered her notice of appearance as counsel for Hughes on November 16, 2017. (C. 243.) Robinson and Hughes were married on February 14, 2018. (C. 642.)
"The Court: We are out of the hearing and presence of the jury. There was something you wanted to address with the Court?
"Mr. Ransom: Yes. Judge, we filed a pretrial motion regarding 404(b) evidence. We were given no notice of 404(b) evidence. And we are considering, or the defendant is considering, testifying. And we need a ruling as to whether or not the State will be able to go into convictions.
"....
"The Court: ... Are you talking about committing other crimes?
"Mr. Ransom: Prior bad acts, convictions, anything. If my client takes the stand, we are only intending from him to testify factually about the dogs.
"....
"The Court: What was the conviction?
"Mr. Ransom: I don't know the exact code section. It was a Federal Code. It had to do with a silencer, an illegal homemade silencer, on a 22 rifle.
"Ms. Robinson: It's a failure to register a firearm.
"The Court: And does the State intent [sic] to use that?
"Ms. Stanley: No. Your Honor, the State does not.
"The Court: Oh. Well, that's a nonissue.
"Mr. Ransom: Okay. Well, let me do something here on the record with my client. Jay, I have given you my advice about that. I think that you should probably not testify. But it's your decision to make. What is your decision?
"(Whereupon, there was an off-record conversation between the Defendant and his counsel; thereafter, the following was heard:)
"Mr. Ransom: He is not going to testify.
"The Court: So that's a nonissue. Now, where are we? Do you have other witnesses, I guess, is my question?
"Mr. Ransom: I think we may be about to rest. I think. If you want to bring the jury back in, we will rest."
(R. 736-39.) (Emphasis added.) Hughes did not testify, and the defense rested.
On June 17, 2018, Hughes filed a motion for a new trial alleging that his trial counsel was ineffective for not allowing him to testify at trial. (C. 749.) The circuit court held a hearing on the motion.
Hughes had previously filed a motion for a new trial on May 4, 2018, and an amended motion for a new trial on May 29, 2018. (C. 665; C. 725.) By express agreement of the parties and by order of the circuit court, the deadline for the ruling on the motion for a new trial was extended on the record to July 20, 2018. (C. 773-91; C. 94-99; R. 845-47.)
Hughes testified at the hearing that he had expressed to Ransom "several" times--"more than four"--that he wanted to testify at trial and that Robinson had prepared him to testify. Hughes testified that, after the on-the-record statement by Ransom that "it's your decision" whether to testify, Ransom "came around to where I was seated, and told me that I wasn't testifying, that he had enough and we rest." Hughes testified that Ransom did not give him the choice whether to testify and that, at the point that Ransom told him that he would not be testifying, Hughes still wanted to testify. Hughes testified at the hearing that he did not inform the circuit court that he wanted to testify because "it happened so quickly" and "the stress I was under at the time, because of the way things were going." Hughes clarified that the "stress" he was under at the time was because Ransom was, he said, "being totally uncooperative during this process. And when we were trying to hand him notes and photographs and things, his response was--when we were trying to do that--is why I was stressed." (R. 946-47.)
David Redmond, Hughes's friend, testified at the hearing that he had attended most of Hughes's trial. Redmond testified that, when the discussion arose during trial about whether Hughes would testify, he heard Ransom say to Hughes, "You are not testifying." (R. 941-42.) Redmond's wife, Sherry Redmond, also testified at the hearing that she was present for most of the trial and that, after the on-the-record discussion about whether Hughes would testify, Ransom "walked back to the table where Mr. Hughes was sitting. And he said, ‘You are not testifying.’ " (R. 943-44.)
Ransom testified at the hearing that, before trial, he and Hughes talked "several times" about Hughes's desire to testify and that Hughes and Robinson had repeatedly told him that Hughes wanted to testify. Ransom testified that he told Hughes that "as a general rule ... I don't like clients to testify." (R. 901.) Ransom admitted that throughout the trial there was a lot of tension between him and Robinson and that, during their joint representation of Hughes, he had told Robinson, "f--- you" and "shut up." Ransom denied, however, that he had ever used any words like that with Hughes, and he testified that his reason for not wanting Hughes to testify was based on his concern that, if Hughes took the stand, he would open the door for previously excluded Rule 404(b), Ala. R. Evid., evidence to come in. Regarding the off-the-record conversation that occurred between him and Hughes immediately after Ransom had asked Hughes, on the record, about his decision whether to testify, Ransom testified that he did not remember the "specific wording" of that conversation but that he "probably reiterated that I just didn't think it was a good idea." Ransom testified that "I'm certain that I remember my advice that I had given to him several times was that I did not think that it was a good idea" but that "I've never told a client, [Hughes], or any other client that they cannot testify." When asked who made the decision whether Hughes would testify, Ransom stated, "Mr. Hughes made it." (R. 904-05.)
Robinson testified at the hearing that she and Ransom had discussed whether Hughes would testify and that she had made it clear to Ransom that Hughes wanted to testify. Ransom told her that if Hughes wanted to testify, "then that was my problem, and I could deal with it" and that he was "not going to have any part of it." Robinson testified that, about a week before the trial, Ransom told her that she was a "blithering fool" and an "idiot" if she thought that Hughes should testify. Robinson told Ransom that it was Hughes's decision to make. Robinson testified that she prepared Hughes to testify but that during Ransom's off-the-record discussion with Hughes about whether Hughes would testify, Robinson heard Ransom tell Hughes, "You're not going to testify." Robinson testified that she did not do anything at that point to advise the circuit court that Hughes wanted to testify but that "I should have stood up at the time when he said that he rested and came around the table, and said, ‘No, Mr. Hughes is actually prepared to testify.’ " (R. 972-74; R. 980-81.)
The circuit court did not rule on the motion for a new trial, and the motion was denied by operation of law. When a motion for a new trial is denied by operation of law, "the presumptions that normally apply to a trial judge's denial of a motion for new trial do not apply." Chavers v. State, 58 So. 3d 829, 832 (Ala. Crim. App. 2008).
"A defendant has a fundamental right to testify on his own behalf, that right is personal to the defendant, and defense counsel may not waive that right." Reeves v. State, 974 So. 2d 314, 325 (Ala. Crim. App. 2007). "A criminal defendant's decision not to testify in his own behalf must be made knowingly and voluntarily." Ex parte McWilliams, 640 So. 2d 1015, 1021 (Ala. 1993). When a defendant claims that his right to testify was violated by his attorney, an ineffective-assistance-of-counsel analysis under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is the "proper framework" in which to address such a claim. See Nichols v. Butler, 953 F.2d 1550, 1552 (11th Cir. 1992).
"In Strickland, the United States Supreme Court outlined the requirements for a successful claim of ineffective assistance of counsel.
" ‘First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’
" 466 U.S. at 687, 104 S.Ct. at 2064."
Nichols, 953 F.2d at 1552–53.
"Where the defendant claims a violation of his right to testify by defense counsel, the essence of the claim is that the action or inaction of the attorney deprived the defendant of the ability to choose whether or not to testify in his own behalf. In other words, by not protecting the defendant's right to testify, defense counsel's performance fell below the constitutional minimum, thereby violating the first prong of the Strickland test."
United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992).
Hughes does not argue that he was not advised that he had the right to testify. And the record shows that Ransom told Hughes, in open court, that whether to testify was "your decision to make," and Ransom then asked Hughes, "What is your decision?"
There is no question, however, that Ransom did not want Hughes to testify. Even so, Ransom told Robinson before trial that if Hughes wanted to testify, Robinson could "deal with it," and Robinson testified that she did in fact prepare Hughes to testify. At the close of the State's case, Ransom informed the circuit court that the defense would have "at least three" witnesses, and after two defense witnesses testified, Ransom brought up to the circuit court the issue whether Hughes's prior conviction would be admissible because, he said, "we are considering, or the defendant is considering, testifying." Ransom also told the circuit court at that time that "[i]f my client takes the stand, we are only intending [for] him to testify factually about the dogs." Thus, although Ransom did not want Hughes to testify, the record indicates that, at least up until right before the defense rested, Ransom was discussing with the circuit court the possibility of Hughes's testifying.
The question, then, is whether, in the off-the-record discussion immediately after Ransom's representation in open court that it was Hughes's decision whether to testify, Ransom refused to allow Hughes to make the decision whether to testify. Ransom testified at the hearing that "I've never told a client, [Hughes], or any other client that they cannot testify." Although Hughes testified that Ransom did not give him the choice whether to testify--and although Hughes, Robinson, and the Redmonds testified that, during the off-the-record discussion between Ransom and Hughes, Ransom told Hughes that he was not testifying--neither Hughes nor Robinson objected to Ransom's telling the circuit court, "He is not going to testify," nor did they in any way advise the circuit court that Hughes wanted to testify. A defendant's failure to state his preference whether to testify, after having been given the opportunity to do so, cannot support a claim that the defendant was denied the right to testify in his or her own behalf. See Ex parte McWilliams, 640 So. 2d 1015 (Ala. 1993).
In McWilliams, the defendant asserted on appeal that his right to testify in his own defense had been violated. The record in McWilliams showed that, at trial, the defendant was advised of his right to testify and was then asked by the circuit court, "And it is your choice not to testify?" The trial transcript indicated that the defendant's response to that question was, "NO ANSWER." McWilliams, 640 So. 2d at 1021. In rejecting the defendant's claim that he had been denied the right to testify in his own behalf, the Alabama Supreme Court stated:
"The record shows that McWilliams was fully aware that he had the right to testify in his own behalf and that he had the right not to testify. The trial court inquired whether McWilliams understood his rights in this regard; and McWilliams had ample opportunity to state his preference whether to testify or not. We find no evidence in the record that either the trial court or McWilliams's counsel interfered with his right to testify in his own behalf."
McWilliams, 640 So. 2d at 1021. See also Teague, 953 F.2d 1525 (holding that, although the defendant had repeatedly advised his attorney before trial and during trial that he wanted to testify, and although the defendant had asked his attorney again, after the defense rested, when he would testify, the defendant failed to meet the first prong of Strickland because the defendant was advised of his right to testify, was advised that he should not exercise that right, and "did not protest").
Here, although Ransom advised Hughes that he did not think that Hughes should testify, Ransom advised him that it was his decision whether to testify at trial and asked Hughes to state his decision on the record. Rather than provide a verbal response to that inquiry, Hughes discussed the decision with his counsel and then remained silent while his attorney announced to the circuit court, moments later, "He is not going to testify." Under these facts, Hughes has failed to meet the first prong of the Strickland test. Thus, it is not necessary for us to address whether Hughes's defense was prejudiced in this case. See Teague, 953 F.2d at 1535 (holding that, "[b]ecause the defendant has failed to meet the first prong of Strickland, we need not address whether Teague's defense was prejudiced in this case"). IV.
Finally, we consider whether there was sufficient evidence to support Hughes's conviction for six counts of first-degree cruelty to a dog. Hughes argues that the State failed to present any evidence that Hughes intended to cause the dogs intensive or prolonged pain or serious physical injury.
Hughes does not argue on appeal that there was insufficient evidence to support his misdemeanor conviction for second-degree cruelty to a dog in case no. CC-16-372.
" ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ " Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998) (quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim. App. 1984) ). " ‘The test used in determining the sufficiency of the evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ " Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997) (quoting O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992) ).
" ‘ "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision." ’ Farrior v. State, 728 So. 2d 691, 696 (Ala. Crim. App. 1998), quoting Ward v. State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."
Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003) (quoting Ward v. State, 610 So. 2d 1190, 1191 (Ala. Crim. App. 1992) ).
" ‘ " ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So. 2d 857, cert. denied, 423 U.S. 951, 96 S. Ct. 373, 46 L. Ed. 2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So. 2d 1161, 1177 (Ala. Cr. App. 1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So. 2d 1179 (Ala. 1985)." ’
" Hollaway v. State, 979 So. 2d 839, 843 (Ala. Crim. App. 2007) (quoting White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989) ).
" ‘ "In reviewing a conviction based on circumstantial evidence, this court must view the evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974) ; United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971) ; Clark v. United States, 293 F.2d 445 (5th Cir. 1961)." ’
" Bradford v. State, 948 So. 2d 574, 578–79 (Ala. Crim. App. 2006) (quoting
Cumbo v. State, 368 So. 2d 871, 874–75 (Ala. Crim. App. 1978) )."
Chambers v. State, 181 So. 3d 429, 434 (Ala. Crim. App. 2015).
Hughes was convicted of first-degree cruelty to a dog, see § 13A-11-241(a), Ala. Code 1975. Section 13A-11-241(a) provides that "[a] person commits the crime of cruelty to a dog or cat in the first degree if he or she intentionally tortures any dog or cat ...." The word "torture" means "the act of doing physical injury to a dog or cat by the infliction of inhumane treatment or gross physical abuse meant to cause said animal intensive or prolonged pain or serious physical injury, or thereby causing death due to said act." § 13A-11-240(a), Ala. Code 1975.
The evidence presented by the State, viewed in the light most favorable to the prosecution, sufficiently supports the jury's verdict that Hughes was guilty of six counts of first-degree cruelty to a dog. The State presented evidence indicating that the dogs on the property had little or no access to food and water and that many of the dogs did not have adequate shelter. The State presented evidence indicating that, although the normal weight range for an adult Dogo Argentino dog is around 88 pounds, the weights of the Dogo Argentino dogs in these cases ranged from 15 pounds to 55 pounds and that the dogs were either "very thin" or in some cases "emaciated." Dr. Colicchio testified that "if the dogs' conditions were not treated, the conditions would still be detrimental to their lives." Dr. Colicchio's testimony about the condition of each dog for which Hughes disputes the sufficiency of the evidence can be summarized as follows:
(1) Regarding the dog identified as A12-03 (which is the subject of case no. CC-16-300), Dr. Colicchio testified that his in-field examination revealed that the dog was very thin and that the dog's hip had no muscling on it. He testified that, because the dog did have some muscling on other parts of its body, he gave the dog a body score of two. He testified that the dog's condition was a continuing, painful condition that would not have occurred over a matter of days.
(2) Regarding the dog identified as A13-01 (which is the subject of case no. CC-16-303), Dr. Colicchio testified that his examination of A13-01 showed that the dog was lame in the left front leg and that the dog's left wrist was swollen and warm. Dr. Colicchio testified that the wrist injury would have been painful and would have impaired the dog's ability to walk. Dr. Colicchio testified that there were several scars throughout the dog's body. Dr. Colicchio gave A13-01 a body score of one and testified that her condition would not have occurred within a matter of a few days and that her condition was a prolonged, painful condition.
(3) Regarding the dog identified as A13-03 (which is the subject of case no. CC-16-305), Dr. Colicchio testified that the dog was dehydrated and had scars on her body that were most likely the result of bite wounds. The dog had severe muscle loss throughout her body. Dr. Colicchio gave the dog a body score of one. He testified that the dog's emaciated condition would have been painful over a long period of time.
(4) Regarding the dog identified as A4-02 (which is the subject of case no. CC-16-311), Dr. Colicchio testified that his in-field examination showed scars on the dog's face and on the bridge of the dog's nose, which would have caused the dog pain.
Dr. Colicchio initially gave A4-02 a body score of two but when he reexamined her the next day in Lake City, she looked worse so he gave her a body score of one. He observed that she had significant muscle-mass loss and that she was heavily infested with fleas. Dr. Colicchio testified that A4-02's condition had not occurred over a matter of days and that she would have been in prolonged pain due to her condition.
(5) Regarding the dog identified as B1-03 (which is the subject of case no. CC-16-323), Dr. Colicchio testified that his examination of B1-03 revealed several scars throughout the dog's body, which were most likely bite wounds. Dr. Colicchio testified that the bite wounds were likely a result of B1-03 getting into fights with other dogs over a lack of food. The dog also had a wound over the right eye, an old wrist wound that was infected, scars on the shoulders and legs, and severe muscle loss. Dr. Colicchio gave B1-03 a body score of one. Dr. Colicchio testified that the wounds would have caused the dog pain over a long period of time.
(6) Regarding the dog identified as B1-04 (which is the subject of case no. CC-16-324), Dr. Colicchio testified that his examination of B1-04 revealed that the dog was emaciated and was heavily infested with fleas. The dog had wounds on his ears, arms, and tail and scars on the top of his head. Dr. Colicchio testified that the dog had not received any treatment for the wounds and that the wounds would have been painful. Dr. Colicchio gave B1-04 a body score of one.
Based on the State's evidence at trial, there was sufficient evidence by which the jury could have found that, when Hughes withheld food, water, shelter, and medical care from the dogs, he intended to cause the dogs intensive or prolonged pain or serious physical injury. See Loper v. State, 469 So. 2d 707, 710 (Ala. Crim. App. 1985) ("The question of intent is hardly ever capable of direct proof. Such questions are normally questions for the jury."). Thus, there was sufficient evidence to support Hughes's convictions for first-degree cruelty to a dog.
The judgment of the circuit court is affirmed.
AFFIRMED.
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.