STATE OF NEW JERSEY v. DONNA ROBERTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4799-07T44799-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONNA ROBERTS,

Defendant-Appellant.

___________________________________

 

Submitted September 23, 2009 - Decided

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Municipal Appeal No. MCA-6-08.

Zabel & Associates, attorneys for appellant (Deidre E. Gannon, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, of counsel and on the brief).

PER CURIAM

Defendant Donna Roberts appeals from an order imposing a penalty for one violation of N.J.S.A. 4:22-26(l), which establishes penalties for persons who shall "[w]illfully sell, or offer to sell, use, expose, or cause or permit to be sold or offered for sale, used or exposed, a horse or other animal having the disease known as glanders or farcy, or other contagious or infectious disease dangerous to the health or life of human beings or animals . . . ." We reverse.

I.

We discern the following facts from the record.

On July 10, 2007, Roberts was issued four complaints in Shamong Township for willfully selling or offering to sell four puppies known as Mia, Buster, Rosie, and Cooper, contrary to the provisions of N.J.S.A. 4:22-26(l). She also received four complaints for failing to provide proper sustenance for the same four puppies, contrary to N.J.S.A. 4:22-26(a)(1).

On December 21, 2007, Roberts appeared in the Shamong Township Municipal Court for trial on the summonses. Barbara Harra testified that she purchased a puppy named Cooper from Roberts on April 25, 2007. When she first saw Cooper, who was approximately three months old, she noticed that his skin was flaky. She asked Roberts about his condition. Roberts replied that the flakiness occurred because the puppy was on wood chips. She represented that Cooper was healthy.

After Harra brought Cooper home, she noticed that he continually scratched, had little lumps all over his body, had diarrhea, and a scab on his head. She took Cooper to a veterinarian on May 1, 2007. The veterinarian diagnosed Cooper with coccidia, lice, and an umbilical hernia. Harra contacted Roberts because the veterinarian told her Cooper's condition was contagious. Roberts told Harra that she would give the remaining dogs a bath, and that she would pay Cooper's veterinarian bills. Harra subsequently received a check from Roberts for medication, but the Division of Consumer Affairs sent the check back at Harra's request because it did not include payment for the veterinarian bills.

There was testimony about three other dogs not involved in this appeal. Because those transactions took place following Harra's purchase of Cooper, they are not relevant to Roberts's knowledge or state of mind in April 2007. Consequently, we do not include any of that testimony.

Dr. Sharon Reighn-Peery, the State's expert, testified that she reviewed Cooper's veterinary records at the request of the Society for the Prevention of Cruelty to Animals (SPCA). She testified that the records show Cooper was taken to a veterinarian within a week of purchase, at which time he was diagnosed with a skin parasite and coccidia, which is an intestinal parasite.

Coccidia is an infectious and contagious disease which, according to Reighn-Peery, would have existed when the dog was sold to Harra because it takes five to fourteen days for it to start "shedding in the feces." She also testified that it is found mostly in young puppies, and is passed orally by puppies playing in fecal matter. According to Reighn-Peery, coccidia is rare unless there are a large number of dogs "shedding" in the same area. Because three of Roberts's puppies tested positive for coccidia, Reighn-Peery opined that the disease had been in Roberts's facility.

SPCA Agent Theresa Cooper testified that she began investigating Roberts after Harra called regarding Cooper's condition. Agent Cooper spoke to Harra and Cooper's veterinarian, and she visited Roberts's facility. Following her investigation, during which she received only minimal cooperation from Roberts, Agent Cooper issued summonses for failure to provide sustenance and selling dogs with infectious or contagious diseases.

Dr. Susan Welsch, Roberts's expert, testified that coccidia is very common in puppies, and it can be contracted from the mother. She described Albon as a drug used to treat coccidia. She also testified that a dog can be a carrier of coccidia and remain symptom-free until the dog is stressed, such as when moved to a new home. Welsch further testified that there is no way for a breeder to know which animal might develop coccidia.

Roberts testified that she had bred dogs for forty years, was a dog groomer for thirty-five years, and worked for a veterinarian for seven years. She further testified that she gave her dogs Albon and standard inoculations, as well as wormings. She said that she also had their stools checked for disease. She opined that illnesses such as coccidia would not show symptoms until a dog is stressed. She stated that she was sure that other dogs she sold had parasites, but that no one has ever taken her to court such as in this case.

After the testimony and closing arguments, the municipal court judge made the following decision with respect to Cooper.

Much of the testimony I've heard or many of the comments from Miss Roberts had to deal with whether a dog is unfit or whether a dog is sick. That's really not the issue here today. There is a consumer protection statute which deals about -- deals with what happens if a person buys a dog and it turns out it's unfit and a veterinary -- a doctor says that it's not fit within 14 days, then the buyer of the dog, the purchaser of the dog has certain rights to a refund, to have his medical bills paid for, or actually get the dog replaced. That's under the consumer protection statute, and that's not something that I'm here to decide today. What I'm here to decide is whether or not the defendant's conduct violated either or any of these statutes with respect to each of the animals involved.

There's no question that at least two of the dogs [including Cooper] . . . had a condition at the time known as coccidia which is both, according to the State's expert witness, both infectious and contagious.

The defendant's argument is that she didn't know they were going to have it. I don't find that persuasive and I'll explain why.

The examination or the inspection I should say by the Health Department found that there was no supervising vet involved with Miss Roberts'[s] operation in Shamong Township. Miss Roberts argues that she gave them the medication; and, therefore, she's not responsible if they turn out to have a contagious or infectious disease. But in my opinion, Miss Roberts, because she didn't have the proper veterinary supervision at the property, did sell at least two of these dogs that were contagious or infectious.

I'm going to therefore enter a finding of guilty to the charge of knowing -- at least selling a dog that was infectious or contagious [including Cooper] . . . . My view is that she did not have adequate veterinary supervision there to make sure that the animals were not infectious or contagious.

The judge imposed a $1000 penalty and $33 court costs for the Cooper violation.

Roberts appealed her conviction to the Law Division. On May 7, 2008, on trial de novo, the judge found Roberts guilty of violating N.J.S.A. 4:22-26(l) regarding Cooper, and imposed a $1000 fine and $33 costs. He stated his reasons as follows:

It's necessary to determine whether the State has met its burden of proof beyond a reasonable doubt. Ms. Roberts is entitled to separate findings with respect to each of the three sales which are the subject of this appeal.

I find with respect to Cooper that Barbara Harra purchased this puppy for $950 on April 25, 2007 from Donna Roberts at her place of business. He was then ten weeks old. He had flakes on his skin, according to Ms. Roberts. Ms Harra complained that he was itching and was told he wasn't used to a collar. He scratched and scratched and had a scab on his head. The vet was called and Cooper was seen on May 1 of 2007 . . . . [The veterinarian's] statements were admitted into evidence . . . [and his diagnosis] confirms coccidia.

Ms. Harra testified that Cooper also had some kind of lice. . . . The diagnosis she said is scabies, a form of lice. Cooper was seen several times and was given medication. She learned from her vet that it was contagious. She was told -- and she told this to Ms. Roberts twice.

There's no allegation that Cooper was unfit for purchase. Ms. Roberts, of course, is, therefore, concerned about a non-issue, as I've already indicated.

. . . .

Two veterinarians testified as experts. Dr. Reighn-Peery for the State, Dr. Susan Welsch for Ms. Roberts. Dr. Welsch had seen, according to her testimony, many pets with coccidia. She treats it with Albon. She stated that drugs were used to treat that parasite. Drugs used to treat that parasite are not 100 percent guaranteed to completely cure the organism.

. . . .

With respect to the relevant issues I find that the testimony of Dr. Reighn-Peery is persuasive. She reviewed the veterinary records for the dogs involved in this case, [including Cooper] . . . . Her testimony was given by her within a reasonable degree of medical certainty.

. . . .

As to Cooper, Cooper was diagnosed as having skin parasites as well as coccidia. I'm satisfied that coccidia is infectious and contagious, and this condition existed when the dog was sold.

. . . .

I find beyond a reasonable doubt that the State has met its burden of proof with respect to Cooper . . ., and that each of these dogs was sold by Donna Roberts while having a contagious or infectious disease as required by the applicable statute. I'm satisfied that it would stretch my credibility to not find that Ms. Roberts was in violation of the statute that requires willfulness, because I find that her knowledge is willfulness.

II.

On appeal, Roberts raises the following issue:

THE SUPERIOR COURT JUDGE ERRED IN FINDING THE DEFENDANT GUILTY OF ONE (1) VIOLATION OF N.J.S.A. 4:22-26(l) FOR THE DOG NAMED COOPER.

Before turning to the issue of whether the State met its burden of proof, we must address the nature of that burden. The parties and the trial courts treated the complaints issued to Roberts as criminal matters requiring proof beyond a reasonable doubt. However, the applicable statute, N.J.S.A. 4:22-26, provides that the penalties are civil rather than criminal in nature.

Because the issue was not specifically briefed, we invited the parties to comment on the applicable standard of proof. Roberts submitted a supplemental letter brief suggesting that, given the language of the statute, the appropriate standard of proof is a preponderance of the evidence. Roberts pointed out that N.J.S.A. 4:22-26(a) defines essentially the same conduct as a crime of the fourth degree. We have received no comment from the State.

N.J.S.A. 4:22-26 provides that the penalties for violation of its provisions shall

be sued for and recovered, with costs, in a civil action by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals or a county society for the prevention of cruelty to animals, as appropriate, or, in the name of the municipality if brought by a certified animal control officer or animal cruelty investigator.

The normal standard of proof in a civil action is proof by a preponderance of the evidence. Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 168-69 (2006). While the statute at issue does not specify a specific standard of proof, we conclude that the applicable standard in this case is proof by a preponderance of the evidence because the statute calls for enforcement through a civil action.

N.J.S.A. 4:22-29 confers concurrent jurisdiction on the Superior Court and the municipal courts to adjudicate penalty actions under N.J.S.A. 4:22-26 involving conduct that occurred within their respective jurisdictions. Rule 4:74-3 provides for appeals of municipal court decisions imposing civil penalties to the Law Division. They are to be heard and determined in the manner set forth in Rule 3:23-8(a) "insofar as practicable." R. 4:74-3(e).

The function of the Law Division on an appeal from a municipal court is not to search the record for error by the municipal court, not to decide if there was sufficient credible evidence to support the municipal court conviction, but "to determine the case completely anew on the record made [before the trial judge], giving due, although not necessarily controlling, regard to the opportunity of the . . . judge" to evaluate witness credibility. State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted); see State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000); see also R. 3:23-8(a). In other words, "[t]he judge in a trial de novo must 'make his [or her] own [independent] findings of fact.'" State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (quoting State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).

In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we might have reached a different conclusion or if the result was a close one. Ibid.; see also Avena, supra, 281 N.J. Super. at 333. Indeed, we ordinarily do not "undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999).

The core issue on appeal is not whether Roberts sold Cooper when Cooper was infected with coccidia, but whether she did so "willfully," as required for the imposition of a penalty under N.J.S.A. 4:22-26(l). "Willfully" is not defined in N.J.S.A. 4:22, which contains various statutory provisions concerning cruelty to animals. The Law Division judge treated the "willfully" requirement as one involving "knowledge," which is not challenged by Roberts on appeal. Indeed, her brief states that "knowingly and willfully are generally synonymous in this context." We agree.

The issue then becomes whether there is a factual basis in the record for the judge's finding that Roberts knew Cooper was infected with coccidia when she sold him. We conclude that there is not.

In reaching our conclusion, we compare the Criminal Code's definitions of "knowingly" and "recklessly." N.J.S.A. 2C:2-2(b)(2) (emphasis added) defines knowingly as:

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.

In contrast, N.J.S.A. 2C:2-2(b)(3) (emphasis added) defines "recklessly" as:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Recklessness," "with recklessness" or equivalent terms have the same meaning.

There was evidence that Roberts knew there was a problem with coccidia at her facility because she testified to giving the puppies Albon, which is used to treat that disease. Reighn-Peery testified:

Unfortunately, coccidia is passed fecal/oral and is very easy to become reinfected. So you can treat as frequently as you want to, but if you're not picking up the feces, and insuring that the new dogs aren't exposed to the feces that are infected. You can treat as long as you want. It'll continue to have coccidia in your facility.

There was also evidence that Roberts did not regularly utilize the services of a veterinarian at her kennel. Consequently, a factfinder could easily determine that she "consciously disregard[ed] a substantial and unjustifiable risk" that Cooper had coccidia when she sold him.

However, the Law Division judge's findings of fact and conclusions of law do not articulate facts or credibility determinations that support a finding that Roberts knew or was "practically certain" that Cooper had coccidia when he was sold. Having reviewed the record, we see no support for such a finding, especially given the incubation period between exposure and the appearance of symptoms. There was testimony that Cooper had flaky skin at the time of sale, but no testimony that flaky skin is a symptom of coccidia, which is an intestinal rather than a skin disease. There was no testimony that Cooper was experiencing intestinal symptoms at or before the time of sale. Consequently, we reverse the judgment on appeal.

Reversed.

"Under the preponderance standard, 'a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence, comment 5(a) on N.J.R.E. 101(b)(1) (2005)).

(continued)

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A-4799-07T4

October 27, 2009