MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the Superior Court, the defendant was convicted of six counts of animal cruelty, in violation of G. L. c. 272, § 77. He appeals, contending that the evidence was insufficient, and that his counsel was ineffective. We affirm.
Background. “Because the defendant challenges the sufficiency of the evidence presented, we summarize the facts the [judge] could have found in the light most favorable to the Commonwealth,” Commonwealth v. Tavares, 471 Mass. 430, 431 (2015), reserving certain facts for later discussion. In November 2013, Jason Gentry
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opened a kennel specializing in dog obedience and protection training. He contacted the defendant about the Donovan Pinscher, an aggressive breed of dog developed by the defendant. In August 2014, Gentry travelled from Massachusetts to the defendants home in New York to purchase a Donovan Pinscher puppy. During the visit, Gentry was offered and selected two puppies; he named them Gigi and Gotti. Gentry watched as the defendant cropped the ears of the two puppies using scissors and superglue, and without using anesthesia. When asked why he did not use anesthesia, the defendant responded that if the puppies were “not strong enough for [his] breed, ․ they ․ get culled” by hanging.
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Gentry returned to Massachusetts with the puppies and remained in contact with the defendant. While Gigi grew normally, Gottis hind legs did not develop properly. Gentry discussed this with the defendant, who offered to travel to Massachusetts to pick up Gotti and replace him with another dog. The defendant came to Massachusetts on November 1, 2014. He planned to pick up Gotti, and another dog named Livid, that was not a “good example” of the breed.
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The defendant arrived in Massachusetts and met Gentry at his kennel. The defendant was accompanied by his wife, three children, his German Shepherd dog, and six Donovan Pinscher puppies (that were to be shipped to Texas). The puppies were in the trunk of the car in covered milk crates or plastic containers. After the puppies were fed, they were placed in cages at Gentrys kennel. The group then left to spend time in downtown Salem. Thereafter, Gentry and the defendant returned to the kennel because the defendant said that he had to crop the ears of four of the six puppies. As he did in New York, Gentry watched as the defendant cropped the puppies’ ears using scissors and superglue, and without using anesthesia.
The following day, Livid was brought to Gentrys kennel to be “culled.” The defendant asked Gentry for a twenty-foot-long cable and choker collar, both of which Gentry provided. The defendant first placed the choker on Gotti, strung the cable around the garage door rail, and hung Gotti from the cable. Gentry became very upset and asked the defendant why he was culling the dog in his kennel. The defendant explained that it was “easier for [him] to get rid of [the dogs] [in Massachusetts], instead of traveling with them back [to New York].” Ultimately both Gotti and Livid were culled by hanging. The defendant placed the dogs into a plastic trash bag, and then “double-bag[ged]” the dogs using a second plastic trash bag. He then placed the bag in the trunk of his car. Before the defendant left for New York, Gentry told him that the fastest route from Massachusetts to New York was Route 1A to the Ted Williams Tunnel.
Approximately three weeks later, on November 22, 2014, a worker discovered the bag at a gas station along the route that Gentry suggested to the defendant. When he opened the bag, the worker saw the dogs, and contacted the police. Both the worker and the police officer did not notice any insect activity on the dogs.
On November 24, 2014, a necropsy was performed by Dr. Martha Smith-Blackmore, a veterinarian. She described the bodies as being in “generally good condition, with some signs of decomposition” which “indicated that there was some passage of time since the animals had died.”
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She did not observe insect activity on the dogs, consistent with the bodies being found in “plastic bags that were secured at the neck with a knot.” Her initial theory was that the dogs died of rat poisoning or a high temperature event, but toxicological testing for rat poison was negative. The initial necropsy was inconclusive. A second necropsy was conducted in September 2015 based on new information about hanging as the possible cause of death. Dr. Smith-Blackmore noted bruising at the corners of Livids jaws, and under Gottis left ear, and hemorrhaging on Gottis trachea. Dr. Smith-Blackmore opined that the dogs died by strangulation or hanging.
Dr. Pamela Reid, an animal behaviorist, testified that hanging a dog is an unacceptable and inhumane means of culling because the animal would “suffer tremendously.” She testified that hanging is “not an immediate death.” Dr. Reid also testified that ear cropping is a surgical procedure done under general anesthesia to prevent pain and suffering, and usually performed by a licensed veterinarian.
Discussion. 1. Sufficiency of the evidence. The defendant was convicted of six counts of animal cruelty: two counts for the deaths of Gotti and Livid, and the remaining counts for cropping the four puppies’ ears. “General Laws c. 272, § 77, provides that ‘[w]hoever ․ cruelly beats, mutilates or kills an animal ․ shall be punished․’ Cruelty is ‘[s]evere pain inflicted upon an animal ․ without any justifiable cause’ ” (citation omitted). Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 803 (2020). “The Commonwealth must prove beyond a reasonable doubt that the defendant intentionally and knowingly [committed] acts [that] were plainly of a nature to inflict unnecessary pain” (quotation and citation omitted). Id.
“In determining whether the Commonwealth met its burden to establish each element of the offense charged, we apply the familiar Latimore standard․ ‘[The] question is whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted). Commonwealth v. Colas, 486 Mass. 831, 836 (2021), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Although cast as a challenge to the sufficiency of the evidence, the defendants argument is that a rational trier of fact could not believe the accusations against him because they “required an abandonment of common sense and scientific facts.” We are not persuaded. At bottom, the defendants claim is nothing more than a disagreement with the weight afforded to the evidence, and the assessment of witness credibility. These issues are wholly within the province of and the sole responsibility of the fact finder. See Colas, supra at 836 n.7. “To the extent that the trial record contains conflicting versions of events, it is the function of the [fact finder], and not an appellate court, to resolve those conflicts.” Id. Here, the trial judge, sitting as fact finder, did just that. He was “free to believe all or any part of the testimony [he] heard at trial.” Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 140 (2001).
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In addition to attacking the credibility of the witnesses called by the Commonwealth, the defendant called a number of witnesses, two of whom testified about the condition of the dogs’ bodies and the timing of their deaths. Dr. Priya Banerjee, a forensic pathologist, opined that Livid and Gotti had been dead for a day or two when the worker found them. She agreed that the cause of death was hanging. Maria Denise Gemmellaro, a forensic entomologist, testified that based on the lack of observed insect activity, the dogs “were not exposed to insect detection for a long time.” She acknowledged that insects could not chew through plastic, and that insect access would be more difficult if a plastic bag was tied and twisted several times. Other witnesses testified that the puppies’ ears were not cropped in Massachusetts, and that the defendant did not cull dogs and instead placed puppies that did not meet the breed standard in homes.
Although framed as a sufficiency claim, the question raised by the defendant is whether the Commonwealths evidence deteriorated after the presentation of his case. See Commonwealth v. Cartwright, 447 Mass. 1015, 1016-1017 (2006). Put another way, the question is whether the defendants case rendered the Commonwealths case “conclusively incorrect” (citation omitted). Commonwealth v. Lawson, 475 Mass. 806, 817-818 (2016). It did not. That the defendant offered competing testimony, including expert testimony does not equate to deterioration. See Kater v. Commonwealth, 421 Mass. 17, 20 (1995) (“Deterioration would occur not because the defendant contradicted the Commonwealths evidence ․, but because evidence for the Commonwealth necessary to warrant submission of the case to the [factfinder] is later shown to be incredible or conclusively incorrect” [citation omitted]).
2. Ineffective assistance of counsel. The defendant claims that his attorney was ineffective for failing to introduce certain allegedly exculpatory testimony and records. Generally, to prevail on an ineffective assistance of counsel claim a defendant must demonstrate that, but for his counsels “serious incompetency, inefficiency, or inattention,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), “the result of the proceeding would have been different.” Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984). Here, the claim is presented in its “weakest form,” as it is asserted for the first time on direct appeal, which our caselaw disfavors. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006), citing Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Because this claim was not presented to the trial judge through a motion for new trial, there is no affidavit from trial counsel, or from the prospective witness outlining her expected testimony, and no opportunity for the judge to address the significance of the claimed error. See Peloquin, supra. In addition, because the records themselves are not before us, we are unable to assess the viability of this claim. Accordingly, the defendant failed to make even a minimal showing that his case falls within the narrow exception where ineffectiveness appears indisputably on the trial record. See Zinser, 446 Mass. at 811-812.
Judgments affirmed.
FOOTNOTES
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. Gentry testified pursuant to an agreement with the Commonwealth. Prior to his testimony, Gentry pleaded guilty to ten counts of animal cruelty, and one count of operating an unlicensed kennel. By agreement, Gentrys bail was set at $1,500 and he was allowed to keep the dogs that lived in his home.
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. Although it has many meanings, “culling” was defined by various trial witnesses as a procedure used to put a dog to sleep in order to prevent inferior genetic traits from being passed on to future generations of the breed.
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. Livid was very “shy and skittish,” and according to the defendant, “wasnt a good example of the [Donovan Pinscher] breed.”
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. Her observations included heavy wet lungs, foam in the trachea, blood on the fur, and jaw bruising.
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. The defendant also contends that the denial of his motion for a directed verdict at the close of the Commonwealths case was clear error because of a statement made by the judge. In ruling on the motion, the judge said “[e]ven without reference to [other testimony and evidence presented by the Commonwealth], the testimony of Mr. Donovan alone is sufficient to defeat the motions.” Read in context, the judge undoubtedly misspoke and said “Donovan” instead of “Gentry.” There was no error.