Visiting from Clallam County, Judge Rick Porter considered the defense's motion to dismiss the charge against Nataliya Ivanovna Nivens, 41, of Sequim, saying the state had met its burden of proof.
“Of course, I'm dismayed by the judge's decision,” defense attorney Tom Brotherton told the Leader. “As far as I'm concerned, there's almost no evidence of animal neglect.”
On June 30, deputies seized 41 animals – 17 dogs, 16 chickens and eight goats – from Nivens' property in the 276000 block of U.S. Highway 101 in Gardiner following a six-week investigation (that she co-owns with her husband Don Nivens).
Defense attorney Brotherton said investigating deputy Bruce Turner did not report seeing animals in pain during any of his four visits to the property prior to executing a warrant June 30.
“Since there was no pain ... there was no crime,” Brotherton insisted in court.
In order to establish that the Defendant inflicted pain on the animals, a prosecutor must rely on circumstantial evidence rather than direct evidence, deputy prosecutor Amanda Wilson said.
“How do you see pain in an animal?” Judge Porter asked, suggesting a witness could only ever infer the existence or degree of pain based on training, experience or direct evidence.
“Ultimately, this is a jury question,” Porter said.
A pretrial hearing is set for Sept. 7, at which time the court would set a date for a jury trial.
Defense attorney Brotherton filed a motion for a bill of particulars, asking the prosecutor to specify which animals felt pain and how Nivens caused that pain.
|Center Valley Animal Rescue Director Sara Penhallegon |
visits some of the older rescued Anatolian shepherds that
are now up for adoption. (Cydney McFarland/Peninsula Daily News)
Brotherton also filed a motion for the return of Nivens' animals. That motion is to be heard Sept. 16. Wilson said she would oppose the request.
Early in his investigation, Turner reported that “the dogs appeared to be losing weight” and told Nivens she had too many animals in too small an area.
“This looked like a farmyard with lots of space,” Brotherton said.
Judge Porter asked how does someone see pain in an animal. “There has to be something besides, 'I don't like the amount of space.'”
Upon visiting the property June 29 with deputy Turner, veterinarian Jan Richards of Chimacum reported the seven puppies appeared malnourished.
Sara Penhallegon, director of Center Valley Animal Rescue near Quilcene, received those puppies after their seizure and told the Leader they were initially underweight and some were emaciated.
Wilson said Nivens had direct knowledge of the condition in which the animals were living.
“A reasonable person would've known the animals needed medical attention; a reasonable person would've known the animals needed more space,” Wilson said. “I don't know if she interacted with the animals. That's criminal negligence if she didn't even know what conditions the animals were in.”
|Chickens and goats rescued from Nataliya Nivens will |
not recover entirely from their injuries, but all are happy, healthy
and very friendly, according to Center Valley Animal Rescue.
(Cydney McFarland/Peninsula Daily News)
Brotherton said Nivens had been in the process of finding a new place for the animals and expected to move them July 1 into rented dog kennel space.
“She said she would move them as soon as she could,” Brotherton said. “The deputy basically gave her a month. On July 1, she showed up with some friends to move the animals and didn't find anything.”
Defense attorney Brotherton said an apparent lack of food is not enough to support the charge, unless the lack of food can be shown to have caused pain.
“They [deputies] probably caused more harm than anyone else through there strong arm tactics,” he said, noting it took several hours to round up the animals. “I'm very confident it's going to go to trial and the jury will look at the evidence and find her innocent.”
Good luck with that.
(PT Leader - Aug 31, 2016)