Friday, January 19, 2007

Man kicks dog: 90 day jail sentence from the Buffalo County District Court Judge Sievers is not a dog lover: dissents from 90 sentence for kicking "Bear" State v. Claussen (Not Designated for Permanent Publication) Filed January 16, 2007. No. A-06-070. Appeal from the District Court for Buffalo County: John P. Icenogle, Judge. Affirmed Nebraska Court of appeals affirms 90 day jail sentence for defendant convicted of cruelty to his neighbors barking dog "Bear," Judge Sievers dissenting as to the sentence. . "Bear" is a 10-pound "Maltese[-]American Eskimo" mix dog. Prosecutors charged the defendant with animal cruelty for his kicking the dog away from his fence. The dog even required treatment from a neurological specialist in Colorado and antidepressant medications. The court dismissed charges of assault Judge Sievers dissents from the decision affirming the 90 day jail sentence calling it a waste of tax dollars:"It is a waste of taxpayers' money to incarcerate this individual for 3 months for what is the functional equivalent of a first-time speeding ticket." When Claussen moved in next door to Rasmussen, the two were friendly with each other. However, that changed following two arguments in the fall of 2004, one regarding Rasmussen's two dogs and the other regarding Claussen's dog. At the time of the incident at issue, Claussen and Rasmussen were not speaking to each other. Rasmussen testified that on February 12, 2005, he was in his kitchen and looked out the window and saw Bear in the yard standing on his hind legs up against the chain link fence that separates Rasmussen's property and Claussen's property. He testified that Bear was barking. Rasmussen testified that while looking out the window, he saw Claussen walk over from his driveway and kick the fence at the spot where Bear was standing. Rasmussen testified that Claussen's kick propelled Bear backward. He testified that Bear responded by snarling and barking and stood up against the fence again and that Claussen kicked the fence a second time. Rasmussen testified that this time Bear "flew . . . a foot or two off the fence." Rasmussen testified that after the altercation with Claussen, he took Bear to the veterinarian to get checked for injuries and subsequently took him to a neurological specialist in Fort Morgan, Colorado. He further testified that Bear is on antidepressants because he becomes very nervous and agitated. Claussen was charged with animal cruelty, in violation of Neb. Rev. Stat. § 28-1009(2)(a) (Cum. Supp. 2006). That statute states, "[A] person who cruelly mistreats an animal is guilty of a Class Imisdemeanorr." The phrase "cruelly mistreat" means "to knowingly and intentionally kill, maim, disfigure, torture, beat, mutilate, burn, scald, or otherwise inflict harm upon any animal." (Emphasis supplied.) Neb. Rev. Stat. § 28-1008(3) (Cum. Supp. 2006). Claussen argues that the definition of "cruelly mistreat" in § 28-1008(3) does not include acts where the harm is minimal, such as in the instant case. Dissenting as to the sentence Judge Sievers writes: While I concur in taffirmingnce of the conviction, I must respectfully dissent from the majority's resolution of the assignment of error that the sentence of 90 days' incarceration is excessive. It is clear from the record and a review of the majority's opinion that the only way this conviction stands up is if Claussen was guilty of "otherwise harming" the dog, because the specified and rather horrific injuries listed in the statute certainly did not occur. If the dog was "otherwise harmed," and the jury found it was, that harm was clearly minimal. To sentence a young man with no criminal record to 90 days' incarceration because he may have inappropriately responded to his neighbor's barking dog is an abuse of discretion. The sentence is far too severe for the nature of the offense and the nature of the offender. It is a waste of taxpayers' money to incarcerate this individual for 3 months for what is the functional equivalent of a first-time speeding ticket. The fact that the sentence is within the statutory limits does not make it an appropriate sentence. See State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

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