Does Merrimack Dog Drowning Warrant Felony Charges?
A Look Into New Hampshire Animal Cruelty Law and the Death of Golden Retriever, Bailey
On June 8th, a golden retriever named Bailey was reportedly pushed into a lake by his owner. Despite his struggle to stay above water, Bailey lost his life while his owner allegedly stood on the dock and made no attempts to help him.
The owner and New Hampshire resident, Nancy Bucciarelli, was arrested and charged with misdemeanor animal cruelty by the Merrimack Police Department.
Residents were left shocked and outraged by this, demanding felony-level charges. However, the current NH animal cruelty code could be tying the hands of law enforcement and the Prosecution. Below is a look into NH state law and how it might impact justice for Bailey.
Current New Hampshire Animal Cruelty Code
Too many times, animals have suffered severe injury or death at the hands of those who receive an unfitting punishment. One of the causes of this issue lies in the specific and extremely limiting language of current law.
NH Law (RSA 644:8, III-a): A person is guilty of a class B felony who purposely beats, cruelly whips, tortures, or mutilates any animal.
Any mistreatment or unnecessary suffering caused to an animal that does not fit within those specific, purposeful acts of cruelty is considered a misdemeanor, unless it is a subsequent offense (RSA 644:8, III). That is regardless as to whether or not such suffering leads to injury or death.
Reportedly, this is the accused's first offense, and she did not 'purposely beat, cruelty whip or mutilate' the dog. Therefore, under current law, the Prosecution would have to argue purposeful torture for felony-level charges in this case.
Legislation that would have enchanced NH's animal cruelty code was proposed last year. Unfortunately, the bill was killed due to lack of meaningful compromise from the House Environment and Agriculture Committee, as well as strong opposition from the American Kennel Club, and their NH Federation, the Dog Owner's of the Granite State.
The Current Alleged Details of the Case
There are allegedly two primary witnesses in this case; one male and one female student, both who graduated from Merrimack High School the very same date as the incident. On June 10th, two days after, the father of the male witness, and the female witness herself took to social media to comment about what occurred.
Their comments were similar regarding the sequence of events that unfolded in Naticook Lake and on the docks at Wasserman Park.
According to their posts, the owner had let an 11-year-old golden retriever, named Bailey, off-leash by the lake. "... the dog was very old and got out of breath very easily," the girl wrote about Bailey.
"When his owner went onto the docks. He tried to follow her but struggled really hard"... "Once he was on, he needed to stop to take a break halfway onto the dock [because] he was so out of breath," she wrote.
"The woman then pushed him into the water and he went straight under. He came up and started gagging and choking on water."
She added that upon asking if they should help the dog, the owner's response was, "He's fine he does this all the time."
Despite the owner's indifference, the two graduates attempted to get the dog out of the water before he drowned, according to their comments. Their efforts were dishearteningly unsuccessful. Allegedly, Bailey was not breathing when they got him out and although attempting to administer CPR, he died.
Both their posts also noted the owner's actions during those tragic moments. "She wasn't crying or yelling for help. She just stood there watching," the girl wrote. "This woman did nothing to help and watched her dog die. She was on her phone talking [to] her daughter, laughing, not really concerned..."
The girl called the fire department, and the MPD also arrived on the scene, who took statements from Bailey's owner and the witnesses.
That call came only after what the girl shared was a five-minute argument with the owner, who allegedly did not want the FD contacted. They also noted that when providing statements, it seemed the owner either 'forgot the truth' or attempted to lie about what occurred.
Surprising to some, additionally included in their comments was that there was seemingly no intent by the owner to kill the dog. The father wrote, "... my son and his girlfriend said they never had the sense she was deliberately trying to hurt the dog. More that she didn't seem to care." And the girl wrote, "We don't believe her intent was to kill Bailey."
Some may believe these social media posts could harm the case, and rightfully so. However, given their consistency and being two days after the incident, the police were likely provided with very similar statements. It is those statements that were considered when the police made their arrest and charged for misdemeanor animal cruelty.
Could The Prosecution Argue Felony, Purposeful Torture?
Felony-level cruelties are currently challenging to prosecute in NH, even in cases of blatant torture, as there are multiple required elements.
Firstly, there is no definition of torture in the cruelty code. Therefore, in a trial, torture must be defined and agreed upon by the Prosecution and Defense. The Prosecution must then prove that the act of cruelty in the case falls under that definition.
When defining torture and determining whether drowning would fit that definition, one must first consider the level of pain and suffering involved.
The American Veterinary Medical Assoc. has documented that drowning is an unacceptable approach to euthanasia ("AMVA Guidelines for the Euthanasia of Animals: 2013 Edition," P. 46), which is a testament to the pain and suffering it can cause.
Although some believed drowned animals experienced CO2 narcosis, rendering the animal unconscious and causing a painless death, a study published in the Wildlife Society Bulletin disputed those claims (Ludders, J.W., et al., 1999).
The study concluded that it takes a significant amount of CO2 in the blood to anesthetize an animal, which is generally unrealistic in most drowning situations. The study also noted that animals suffer the pain of anoxia (absence of oxygen) and hypoxia (inadequate oxygen), long before CO2 narcosis, which may not occur at all. Evidence of high levels of epinephrine was also found in the blood of drowned animals, which indicate stress, likely caused by panic due to fear or lack of oxygen.
The definition of torture in itself also generally requires intent. Torture is often distinguished from other acts of cruelty, not only by the severity of physical or mental pain and suffering but whether there is intent to cause it.
Secondly, whether intent is considered as part of the definition for torture, to argue torture under NH's animal cruelty code comes the burden to prove that intent regardless, as the law requires that felony-level cruelty is 'purposeful' (RSA 644:8, III-a).
The witness noted that she did not believe the owner intended to kill Bailey. That isn't necessarily impactful as one could intend to torture an animal, but not to kill them. However, the witness's father wrote that they believed that there was no intent to cause harm.
The witness also noted that the owner appeared to be indifferent, which many may perceive as negligence.
Granted, one could argue that the witnesses' beliefs regarding the owner's thoughts or intent may not carry as much weight as her actions, which were to purposely push the dog into the water and refrain from helping despite him drowning to death.
The accused was not demonstrating an active intent in causing the dog pain, such as holding the dog under the water. However, it doesn't mean that the dog wasn't experiencing the pain and suffering that one would use to define torture. The owner's apparent indifference doesn't necessarily prove a lack of acknowledgment or understanding that the dog was suffering and dying, but could indicate a lack of empathy. And one could potentially argue that her purposeful omission of assistance demonstrates a choice not to end his pain and suffering, which could indicate a conscious objective to cause it in the first place.
However, under current law, those arguments would come with a significant risk of not meeting the burden of proof, leading to no conviction. Whereas misdemeanor, negligence comes with a greater chance of success, but a higher potential of a lenient sentence by the Court.
Overall, like most animal cruelty cases, this trial will be complicated. And the fact is, current law and court precedent are working against the Prosecution in regards to felony cruelty and an imposed jail sentence.
Penalties Under Current Law
Misdemeanors are punishable by up to one-year imprisonment and a fine up to $2,000, with felonies punishable by a minimum of three and a half, up to seven years imprisonment and a fine of no less than $4,000.
Although misdemeanors carry up to a one-year jail sentence, courts often hand out suspended jail sentences, even in egregious cruelty cases. (A suspended jail sentence is a sentence in which the time served is not served in jail, as the judge agrees to withhold execution of the jail time.)
In the Wolfboro trial, involving over 80 Great Danes found living in abhorrent conditions and suffering from injuries and diseases, the Defendant received a fully suspended jail sentence in Caroll County, by both the District and Superior Court. A man from Keene, convicted for kicking and killing a 15-year-old Pomeranian, received a fully suspended jail sentence by the Jaffrey District Court. Fourteen cats were stuffed into a small crate and left outside in the cold. They were covered in blood and feces, and suffered from dehydration and illnesses, only 12 survived. The two Defendant's received a fully suspended jail sentence by the Claremont District Court. These are only a few examples of unfitting punishments handed out in NH cruelty cases; all of which misdemeanors were charged due to the limitations of current law.
What Lies Ahead
According to MPD Deputy Chief Levesque, the Hillsborough County Attorney's office demanded that the case be handed over to them on June 26th, canceling the previously scheduled arraignment.
Although Hillsborough County primarily handles superior court trials and felony-level cases, they do handle some district trials and misdemeanors as well. It is uncertain as to whether they intend on bumping up the charges, which Deputy Chief Levesque mentioned he is doubtful will be the case. However, he stated the MPD has left this in their hands.
Now, as thoughts of Bailey's final moments burn in the minds and hearts of NH residents, a painfully familiar question returns. Will the Court's ruling fit the crime, or will this case end up yet another disheartening and crucial reminder that NH's current animal cruelty code is in dire need of enhancement?