MR. DUNGAN: Your Honor, Dr. Sray is next. He’s going to take quite some time. If you want to take a quick two.
THE COURT: Do you have anybody else here?
MR. DUNGAN: Not short.
THE COURT: What time is Dr. Sray--he’s here?
MR. DUNGAN: He’s here and I’m ready to get started with him, but he’s going to go quite a while. If the court was planning on take a mid morning break this would probably be a good time.
THE COURT: I think you’re suggesting that would be a good idea. Okay. And you can release these people to go about their business.
MR. DUNGAN: Right.
THE
COURT: Okay. Let’s take—-ten minutes, Mr. Dungan?
MR. DUNGAN: Sure.
THE COURT: Ten minutes, Miss Lamp.
MS. LAMP: Thank you, Your Honor.
(At 9:28 a.m. recess)
(At 9:40 a.m. proceedings reconvened; court,
parties present)
THE COURT: Back on the record on People versus Henderson and Mercier. The parties are here and Mr. Dungan is getting the witness.
Stop and raise your right hand please. Do you solemnly swear or affirm the testimony you will give in this matter will be the truth, so help you God?
DR. SRAY: I do.
THE COURT: Watch your step coming up and that chair is on rollers, so be careful. And the microphone is not going to make you any louder, so make sure you speak up loudly and distinctly for us. State your full name.
THE WITNESS: Robert J. Sray, DVM.
THE COURT: Spell your last name.
THE WITNESS: S-r-a-y.
THE COURT: DVM you said?
THE WITNESS: Doctor of Veterinary Medicine.
THE COURT: Right. Okay. Mr. Dungan?
MR. DUNGAN: Thank you, Your Honor.
ROBERT
J. SRAY, DVM
Called at 9:41 a.m. by the Defense, sworn by the court, testified:
DIRECT EXAMINATION
By MR. DUNGAN:
Q. Dr. Sray, would you describe for us your educational background please?
A.
I graduated
Q.
All right. Let me back you up
just a little bit. You went to college
at
A.
I went to veterinary school at
Q.
What was your under grad degree at
A. Animal science.
Q. Is that a four yea degree?
A. It’s a four year degree, a bachelor’s degree.
Q. And did you follow that up with vet school at MSU?
A. Yes.
Q. And you graduated ’69?
A. In the fall of ’69.
Q. All right. And since that time have you been licensed to practice veterinary medicine?
A.
I’ve been licensed to practice in
Q. All right. And you’ve been doing that for thirty-eight years.
A. Yes.
Q. Would you describe for us then your professional experience in private practice that you’ve had?
A.
I’ve been primarily a small animal and equine practitioner for the last
thirty-eight, or twenty-eight years since I’ve moved to
Q. All right. Shall animals consists of what?
A. Dogs, cats primarily.
Q. Domestic pets essentially?
A. Yes.
Q. And when you say equine, that of course means horses.
A. Yes.
Q. All right. Have you had personal experience with horses as well?
A.
I owned horses since, since I was a kid, but I’ve owned horses in
Q. How many do you have right now?
A. I have too many. Eight.
Q. All right. Now, in addition to running a private practice, are you also associated with Jackson County Animal Control?
A. I have represented the Animal Control for approximately twenty-eight years as a consulting vet on cruelty cases, yes.
Q. And what do you do as far as your contacts with Animal Control?
A. Well, basically if they have a suspected cruelty case which I must confess is mostly small animal, they would either contact us or bring the animals out for necropsies or examinations. We run fecal checks on them. As far as horse work, I have done work, several cases for the county over the years for horses.
Q. All right. And is that essentially a contract that you have with the county to provide those services?
A. Years ago and I can’t remember when, we had an unofficial contract, it was basically a pay as you do type thing. Whenever they needed me. It wasn’t a fee basis, I’m on contract and I’m getting paid so much per month. Whatever I did they contacted me and we’d bill them for it.
Q. All right. But you’re the one that they contacted in the cruelty type cases.
A. Yes.
Q. All right. Let me start by asking you some general questions about horses, if we could. Are you familiar with BCS or body condition score for horses?
A. Fairly well.
Q. All right. Would you describe that for us, what that is and how that works?
A. Well, basically it’s a grading system between one being extremely thin, emaciated, ribby, whatever, to nine being extremely fat, and the average horse being around five.
Q. All right. Five ---
A. The body condition you’d like to see is around five.
Q. All right. That’s ideal I guess?
A. In most cases, yes.
Q. All right. And is that what’s commonly referred to as a Henneke scale then?
A. I believe so, yes.
Q. All right. And as far as the, the differences, you know, between a body condition score as it goes up one or it goes down one, is there a typical number of pounds between each mark in the scale?
A. I believe it’s around forty-five or something like that if it goes up or down, forty-five.
Q. All right. And in the course of your private practice as a veterinarian, you encounter horses that have different weight issues from time to time?
A. Yes.
Q. And have to deal with that?
A. Yes.
Q. And advise horse owners or horse caretakers on that?
A. I do.
Q. All right. In general as far as the weight of a horse is concerned, you know, I want to talk to you about some general questions first. During the course of a horse’s life, is it always going to maintain an ideal weight?
A. Not necessarily.
Q. And as far as, you know, what is a healthy horse or a healthy weight, would you rather see a horse towards the thin side or towards the fat side of the scale?
A. I’d probably like to see her around four or five.
Q. And is a horse’s weight going to be consistent throughout its entire life or is it going to fluctuate from time to time?
A. It’s going to fluctuate just like anybody.
Q. All right. And could that be the same even in a given year?
A. Yes.
Q. Okay. And as far as horses, you know, in comparison to other horses, are they all equal in their ability to maintain an ideal weight?
A. No. There are what we call easy keepers and hard keepers.
Q. All right.
A. Basically some horses you have to feed extra, some horses you don’t have to feed extra.
Q. And will some horses lose weight easier or harder than others?
A. Probably.
Q. And some horses gain weight easier or harder than others?
A. Yes.
Q. And will horses present challenges in maintaining an ideal weight from time to time to the horse owner or caretaker?
A. Yes, it could.
Q. Can those challenges of maintaining an ideal weight come up even if the caretaker’s not doing anything wrong?
A. True.
Q. Some horses tend to run naturally thinner?
A. Yes.
Q. And some horses tend to run naturally bigger?
A. Yes.
Q. And some put on weight easier or harder than others.
A. Yes.
Q. Is this, as opposed to, you know, a weight issue with horses, I guess probably the best question to ask is do we have to look at each horse as an individual?
A. I believe that would be considered, yes.
Q. Same as we would a person.
A. Right.
Q. All right. What types of variables are going to cause a horse’s weight to decrease or increase?
A. Well, diet for one, if you change hay, change grain, the amount of grass, different types of, times of the year. In August when the grass is shorter if they’re just on pasture you’re likely to lose some weight, plus not to mention the weather, the heat in the summer. In the winter the cold weather will cause a horse to lose weight because he’s shivering more to maintain his body heat. Water and grain could be added to it. A lot of changes similar to that.
Q. Age be a factor?
A. Age definitely can be a factor.
Q. Health of the horse be a factor?
A. Yes, sickness.
Q. Type of food and amount of food?
A. Yup.
Q. Sickness I think you mentioned along with disease?
A. Yup.
Q. Parasites could be an issue?
A. Definitely.
Q. Amount of exercise?
A. Yes.
Q. Environment the horse is kept in?
A. Yes.
Q. All right. And in particular with horses that are kept in a herd as opposed to individually, are there some dominance issues that you see in a herd?
A. You’re going to have a pecking order in any herd of horses and some of them are not going to get what, as much food and maybe not get up there as often to the food, but you’re going to have a pecking order and they’ll be scared off.
Q. All right. Got to wait their turn to eat.
A. Yes.
Q. All right. And do you find too that there are some horses who are simply finicky or disinterested in food at particular times for whatever reason?
A. Yes.
Q. Will a horse, you know, choose to eat more or eat less for reasons that we may never know about?
A. Probably you could say that.
Q. All right. And again, gain or lose weight for reasons that we may never know about?
A. True.
Q. Will a horse gain or lose weight, perhaps get thin for a number of reasons that are totally unrelated to torture?
A. Definitely.
Q. Or a failure to provide with adequate food, water, shelter or vet care?
A. Definitely.
Q. And that’s some of the factors that we went through as far as diet and exercise and things of that nature.
A. True.
Q. All right. I wanted to talk to you first, next I guess too about horses wintering outside.
A. Mm-Hmm.
Q.
In
A. Mm-Hmm.
Q. All right. Does it happen?
A. Mm-Hmm.
Q. Yes?
A. My own horses are kept outside.
THE COURT: You have to say yes or no.
MR. DUNGAN: All right.
BY MR. DUNGAN:
Q. Do you have any problem with wintering horses outside?
A. No.
Q. All right. And as far as a horse--
THE
COURT: You have no problem personally as
a horse owner or as a vet, or both?
THE WITNESS: I have no problem with clients keeping their
horses outside.
THE COURT: So both personally and professionally.
THE WITNESS: Yes.
BY MR. DUNGAN:
Q. And what has nature done or provided for horses that helps them make it through colder weather?
A. I’m sorry, I didn’t hear the first part of that.
Q. What has nature provided for horses to help them make it through colder temperatures?
A. Well, basically they develop a winter coat which helps protect them against the elements.
Q. All right. So they’ll grow a thicker coat I guess similar to about any other animal that winters outside.
A. (Indiscernible)
Q. I think you had mentioned too when we were talking about weight, that as the temperature gets colder a horse is going to tend to lose a little bit of weight.
A. They’re going to burn off more energy which would cause them to lose weight, yes.
Q. And why are they burning off more energy?
A. To stay warm.
Q. Okay. Which means they got to take in more calories if they’re going to maintain their weight.
A. Yes.
Q. If they don’t take in the more calories they’re obviously going to lose some weight then, is that right?
A. Well, even if they take in the calories depending on how cold it is they’re still going to be shivering, just like you being out the winter time without a jacket on, you’re going to be shivering.
Q. Okay. So would you agree that it would not be unusual that a horse is going to lose weight through the winter?
A. No, its not unusual.
Q. All right. Is it expected?
A. I would expect it. If they’re wintered outside, yes, I would expect it.
Q. And are there certain horses that are going to I guess winter harder or become thinner than other types of horses?
A. Well, as far as breeds, no. But I think older horses tend to winter harder and the dominant ones don’t seem to winter as hard, but at the same time maybe they’re pushing the other ones away.
Q. Okay. And what about younger horses? Are they going to have a harder time of things in the winter too?
A. They probably will.
Q. For those same reasons?
A. Yes.
Q. Okay. Now, you had mentioned the term called hard keepers?
A. Yes.
Q. What does that mean?
A. It’s kind of a layman’s term where I go out to see a couple of horses and this one is big and fat and all it’s eating is grass and this other horse you’re feeding hay, grain and everything, and it’s still thin. And to keep weight on this horse you have to add hay, grain and so forth to it.
Q. All right. So the term hard keeper means essentially hard to keep weight on.
A. Right.
Q. All right. And is that necessarily because the caretaker’s doing anything wrong?
A. No.
Q. All right. And is the term hard keeper, does that just refer to older horses or can that be a horse-—
A. No, it can be younger horses as well.
Q. All right. And what about horses in between younger and older?
A. It could be any horse, any age.
Q. Of any age?
A. Yes.
Q. Some are just hard to keep weight on.
A. Right.
Q. Okay. As far as how horses carry their weight, I wanted to ask you first about some senior horses, you know, essentially an old brood mare. Is a senior horse going to carry weight differently, I suppose any different than a senior person?
A. Probably not.
Q. How would you describe that?
A. Well, I use the comparison, I don’t know if this is applicable, but if you have a grandmother that’s fifty or sixty years old and you know what she looked like and now she’s eighty years old. Is she carrying the same weight, eating the same amount? No. She’s probably thinner or in some cases she’s overweight. But in most cases you’re not going to be the same when you’re two and three and ten years old as you are when you’re twenty-eight, twenty-nine years old.
Q. And that’s going to keep changing as we increase in age.
A. I believe so, yes.
Q.
All right. As far as providing
food to horses in the winter, what’s a typical diet for a horse wintered in
A. Basically hay, grain and water.
Q. Okay. What’s primary?
A. Hay.
Q. All right. Now, does every horse need grain throughout the winter?
A. Not every horse, no.
Q. All right. What, are there particular types of horses, and I don’t necessarily mean by breed, but you know, by age or condition that would need grain more than other horses?
A. Well, an older horse I’d probably recommend senior feed which is a higher protein quality and it’s better feed for an older horse. I also suggest up, you know, feeding alfalfa rather than grass hay, because alfalfa definitely has more nutrition in it.
Q. Okay.
A. And as far as supplements, grain, I might add a protein supplement, they make a soybean protein supplement to add to your grain so you’ve got more nourishment in there.
Q. Now, are those things that have to be done or could be done?
A. Could be done.
Q. Okay. And as far a providing horses with water throughout the winter, is it uncommon on the farm during the winter to provide horses with water sources that are unheated?
A. No, not uncommon.
Q. Is it uncommon for caretakers or the horses themselves to sometimes have to break through a layer of ice on top of the water trough to get to the liquid water before?
A. Yes. It’s common to break through a layer.
Q. All right. And you’ve had to do that yourself with horses in the winter?
A. I have, when it first starts to freeze the ice forms on it in the morning, I break it and if it freezes up during the day I break it a couple of times.
Q. And sometimes the horses can do that themselves too?
A. Yes. If it’s a thin layer of ice and they want a drink, they can do it.
Q. Okay. Now, as far as the rough coat that horses get in the winter. Is that something that they have to grow in order to be outside?
A. Well, it’s something that occurs in nature and it naturally would grow a long hair coat.
Q. All right. How would you describe it as far as how it makes the horse appear?
A. They look rough, unkempt and--they look rough.
Q. And I want to talk to you in general as well about parasite control with horses.
A. Mm-Hmm.
Q. And I guess first. What types of parasite issues do horses have?
A. Well, most horses have several different types, but using common wormers like the different products, Panacur, Strongid and Ivermecton--
THE COURT: Can you spell those please?
THE WITNESS: I-v-e-r-m-e-c-t-o-n. Basically you’re taking care of the common types of—-
THE COURT: You mentioned three.
THE WITNESS: I’m sorry?
THE COURT: You mentioned three.
THE WITNESS: Oh, Strongid, S-t-r-o-n-g-i-d P, which is dash P which is a paste, and Panacur is P-a-n-a-c-u-r.
THE WITNESS: Okay, thank you.
THE WITNESS: They’re three different drug classifications, so if you’re switching between those three in my opinion then you’re getting different spectrums each time you worm the animal.
BY MR. DUNGAN:
Q. Before we get too specific with that. You’re talking about internal parasites at this time.
A. Mm-Hmm.
Q. Yes?
A. Yes.
Q. And that generally means the worms?
A. Yes.
Q. All right. How do horses get worms?
A. Basically in their environment. When you have a horse that dumps out and other horses walk through it, they can pick it up in the hay, the grain, not necessarily grain, but hay, the pasture. It’s kind of a constant re-exposure to the environment.
Q. Now, is that something that’s just going to happen on a dirty farm that’s not properly taken care of or is that going to happen on virtually any horse farm?
A. It’s going to virtually happen on any farm.
Q. So every farm with horses is going to have issues with internal parasites, the worms that have to be dealt with?
A. Yes.
Q. All right. And horses can have external parasites as well?
A. Yes.
Q. And what’s common for that?
A. Lice in the wintertime. I had a client call me yesterday about a tick problem on her horses.
Q. Okay. But lice is an issue too?
A. Lice is an issue, yes.
Q. But primarily during certain times of the year?
A. Yes. When they have the long shaggy coats and dampness and the rain and so forth, usually lice. When you’ve got a shiny coat, the lice can’t stick to anything, they can’t lay their eggs on the hair folli—-or the hair itself.
Q. Okay.
A. So basically when you got a nice shiny coat in the spring and summer, you don’t have a lice problem.
Q. All right. But when they get the rough coat for winter, that changes things.
A. It could possibly change, yes.
Q. Because now the lice have apparently something attractive to them to live in.
A. Right.
Q. All right. What is typical treatment for lice?
A. Well, I usually recommend the Ivermectin product because it, you give it orally you’re worming the animal, but it works in the horse for eight or ten days and as the lice bite it kills that organism.
THE COURT: How do you spell that?
THE WITNESS: Pardon?
THE COURT: How do you spell that?
THE WITNESS: Ivermectin, I-v-e-r-m-e-t-i-n.
THE COURT: Thank you. Mr. Dungan?
BY MR. DUNGAN:
Q. Now, these parasites that we’re talking about, the internal and the external. Is that just a problem with horses that are not being properly cared for?
A. No. It’s a horse problem.
Q. Okay. Every horse--
A. All horses.
Q.
All right. March sixteen, 2007,
you became involved with some activities out at the Turn Three Ranch in
A. Yes, I did.
Q. And would you tell the judge how you became involved with that?
A.
I was out on a farm call about nine, ten o’clock, and my secretary got
me on my cell phone and said that Mr. Mercier had called and he needed me to
come out to his place because Animal Control was coming out and they wanted a
vet there. And so I responded to that
call and appeared out at the Animal—-or out in
Q. All right. Did you speak personally with Matt Mercier on the phone?
A. No.
Q. Did you speak personally with anyone from Animal Control?
A. No. They didn’t call me.
Q. Were you given any other information over the phone as to what this was about other than what you’ve already told us?
A. Other than the Animal Control was coming out.
Q. Okay. And is that a typical call that you got?
A. Not typical, but… It’s a call, normally it’s an emergency go, you got a colic case or something, but no, if Pam gets something, and I went.
Q. All right. So you arrive out there. Tell the judge what happens.
A. Well, I arrived out there I think it was late morning, and Matt was there at the time. Officer Wheaton had not shown up yet and I was roughly there maybe about five to ten minutes and then Officer Wheaton showed up. And--
Q. All right. During the five to ten minutes before Officer Wheaton shows up, showed up, is it just you and Matt there?
A. Yes.
Q. All right. Do you have conversation with Matt?
A. We had a conversation about the dead horse that was there and about three horses that were underweight, old horses that were underweight that they were investigating.
Q. Okay. Any other conversation? Or were you provided with any other information?
A. No.
Q. And then Officer Wheaton shows up about five to ten minutes later?
A. Yes.
Q. And where are you and Matt when she shows up?
A. We’re in the front part of the, just, we’re in the front part of the area there where all the junk was kept.
Q.
All right. So you entered off of
A. Yes.
Q. All right. And at the time that Officer Wheaton shows up, had you actually gone on to the farm to look at any horses?\
A. No.
Q. All right. So you waited for her to arrive?
A. Yes.
Q. All right. Then tell me what happened.
A. The only horse I did see was the dead one that was laying next to a trailer or something.
Q. Okay. But by the time Officer Wheaton arrived, you had not yet looked at any live horses.
A. No.
Q.
All right. Well, tell me what
happens then when officer
A. Well, she, we proceeded to walk back through into the pasture and to a large confinement area or pen where these three older, three horses were being kept.
Q. Okay. Let me slow you down and stop you for a second just so I can stay in order and on task and help me out with it. You did have, you did mention that there was a dead horse.
A. Yes.
Q. And where was that horse located?
A. It was in the front part of the property next to a, I believe next to a trailer or next to something, a vehicle or something that was there.
Q.
Okay. Right off of
A. Well, it was back at least a hundred yards or more.
Q. Okay. And---
A.
On
Q. And as far as that dead horse is concerned, I guess first, is it unusual on a farm with seventy horses that one’s going to show up dead one day?
A. No, it’s not unusual.
Q. All right. And simply because one out of seventy horses shows up dead one day, does that necessarily mean that there was some kind of torture, abuse, neglect, or failure to provide?
A. I wouldn’t say yes or no on that, I don’t believe it was, no.
Q. Okay. Did you examine the dead horse?
A. No.
Q. Did Matt ask you to?
A. No.
Q. Did Officer Wheaton ask you to?
A. No.
Q. So then we proceed to the live horses.
A. Yes.
Q. All right. And as I understand it, you were taken to see three of the thinner horses?
A. Yes.
Q. Where on the property were those located?
A. They were in this large pen that, they were confined to a large pen and we walked in and just basically looked them over.
Q. All right. And what were your observations of those three thin horses?
A. They were very thin, underweight, and then I found out two of them were in their twenties. They had long hair coats. They were standing there eating hay. There was water in buckets. There were grain buckets there but I didn’t see any grain in the bucket at the time. And they were just standing there eating hay and they didn’t run away or anything.
Q. And did they seem responsive to your movement?
A. Yes.
Q. All right. Other than the thin condition, did they show any signs of injury or illness?
A. No.
Q. Now, when we see thin or however you described it, are we talking starved?
A. I wouldn’t, I wouldn’t say they were starved, no. They were eating hay. They had access to it. At that day.
Q. Okay. And did you believe that they were thin to the extent that they needed immediate vet services?
A. No.
Q. And as far as the body condition score of those three.
A. Probably around two.
Q. Around a two.
A. They were around.
Q. Now, you found out that out of those three horses that two of them were around age twenty-four or twenty-five.
A. Yes.
Q. Now, where is that as far as a horse’s typical life span?
A. It’s getting near the end.
Q. Okay.
A. It’s pretty old for a horse.
Q. Similar to what in people years?
A. Eighty, ninety.
Q.
Okay. And when you find out that
two of the three of them are that old and have wintered in
A. No. I, I think the hard winter, the four to six weeks of extremely cold weather hit those horses harder than any of the others.
Q. Because of age?
A. Because of age, because of their condition. Primarily I think age.
Q. Okay.
A. Maybe they weren’t as good going in either, you know, going into winter. So I don’t know that.
Q. Again, because of age related issues?
A. Possibly.
Q. Now, one of the three I think you found out later too was a grulla mare that was approximately four or five years of age.
A. Yes.
Q. So not, you know, nowhere near as old as the other ones. Can even a younger horse like that grulla mare have issues that may cause it to be more difficult to maintain throughout the winter?
A. It can.
Q. All right. And is that basically the same issues that we’ve already talked about?
A. I believe so.
Q. As to that grulla mare. If Matt had separated her from the herd, you know, you said she was in a pen, correct?
A. Yes.
Q. Essentially just with the other two?
A. With the other two she was, she wasn’t being bossed around or anything, she was standing there nice and calm.
Q. All right. If Matt had separated her from that herd and was giving her electrolytes, anti-inflammatories and grain, would you consider that an appropriate response to her thin condition?
A. I don’t know what he was treating her for, so I can’t really say yes or no on that.
Q. What would you recommend as far as food or treatment for horses that are thin like that?
A. Well, I would probably blanket the both of those or all three of those horses because of the cold weather. I would have probably suggested senior feed for the older ones and maybe even the grulla mare. And I don’t know the medical history really on the grulla mare to tell you what else could have been done.
Q. Okay.
A. You could run blood counts and things like that on theses horses to see if they’re anemic and so forth, could run fecal checks to see if they’re wormy. I don’t know Matt’s schedule as far as worming and vaccines and so forth.
Q. Okay. Now, these were the three thinnest horses on the farm of all the horses you saw. Correct?
A. Yes.
Q. Does it make sense to segregate them together?
A. Yes.
Q. What’s the benefit of doing that?
A. Well, you can, you can feed them maybe more, you can feed them different feeds, and hopefully get them back on their feet a little quicker.
Q. All right. Separated from the herd-—
A. Well, then they’re not getting bossed around and not getting what they need.
Q. So less competition for food.
A. Right.
Q. Easier to control the type of food that they do consume?
A. Yes.
Q. And easier to monitor the amount of food that they eat?
A. Yes.
Q. All right. And would you consider, you know, separating them from the herd and treating them in that manner consistent with being a good caretaker of horses?
A. Yes.
Q. All right. As far as these three thinner horses that we have talked about. Did you observe anything about those horses or on that farm that led you to suspect either torture or failure to provide with adequate care based on what you saw on that day?
A. No.
Q. All right. Based upon your education and experience in the examination of these three thin horses, what would you say was the primary factors as to why they were thin?
A. Age, possibly sickness on the grulla, and the cold weather.
Q. All right. And following your examination of these three thinner horses, I understand that you then walked through the herd in the pasture.
A. Yes.
Q. And saw approximately how many horses?
A. About forty, fifty. It’s the first time I’d ever been back to that part of the pasture.
Q. Okay.
A. I’d never seen that many horses back there before
Q. And what observations did you make while you were back there?
A. Well, there were three big round bales of hay. There were ten or fifteen horses standing around eating hay. There were ten or fifteen horses laying down, there were ten or fifteen standing around. And I think if they were being starved they would all be over there trying to eat the hay.
Q. Why do you say that?
A. Well, if, if you’re hungry you’re going to go for the food and it seemed to me like, you know, some of them had, were comfortable just laying down. It just didn’t seem like they were all starved.
Q. Okay. So not what you would expected to have seen from a herd that wasn’t being properly fed.
A. Right.
Q. All right. When you were out in the pasture you see some issues involving an electrical fence?
A. The fence was down apparently, and I’d never seen it before but Matt said that there were three strands, or three separate pastures and when the power went out, the horses went through it. And with electrical fence you can understand how they’re going to get running and tear it down.
Q. Okay. And as far as any debris out in the pasture. Did you make any observations?
A. I saw a piece of wire at one place and the debris that has been portrayed in the newspaper to my recollection is all up front, not in the pasture.
Q. All right. Not in areas where the horses typically get to?
A. No.
Q. Okay. The horses in the pasture. Did you observe any signs of illness or injury?
A. Only-—no real illness or injury. I basically visually looked at them. We did not examine anything except for one horse that Matt had me check his rear end because he said he was-—
Q. I’ll get to him in a minute, but just in general--
A. Okay.
Q. –-on the ones that you saw. I mean, any signs of snotty noses or coughing or anything like that?
A. No.
Q. All right. And can I safely assume if you’d have seen a horse with some kind of serious issue it would have come to your attention?
A. Yes. I actually think horses winter better outside than they do inside.
Q. Why do you say that?
A. Well, because they’re not exposed to the dust and pollens in the barn. I mean if you’ve got a nice clean barn and you’ve got two or three horses and you’ve got a nice setup, fine. But most people with that many horses, a lean-to is perfectly adequate.
Q. Okay. How would you describe the general condition of the horses in the pasture?
A. They were in fair to good condition. Some of them looked better than others, but most of them were I’d say fair considering the weather and everything.
Q. Okay.
A. But they did have rough coats. I didn’t touch any of them, didn’t do anything like that.
Q. And you would expect that they would have rough coats from being wintered outside.
A. Sure.
Q. They’re not going to be I think like you said shiny like they are in the summer at this point of the winter.
A. Right.
Q. Now, when you say, you know, rough coats and things like that, are we talking cosmetic criticisms or opinions or are we talking health issues?
A. Just a winter hair coat.
Q. So we’re not talking about a health issue.
A. No. Which is normal on, on horses that are kept outside.
Q. All right. One of the phrases that you had used in your report is that when you were out in the pasture you had said that the horses didn’t look down.
A. No.
Q. What does that mean?
A. Well, they didn’t look like they were just, they looked alert. They were moving around. As we walked through they moved around. They weren’t just down and out type depressed looking.
Q. Okay. And I know what, you know, I’m not suggesting you’re a psychologist of horses or anything like that. But I mean, you know, for doing this for so long, I mean if there are problems in the herd as far as, you know, not adequate food, water, shelter, rampant sickness throughout the herd, I mean, do you expect to see certain signs in the horses?
A. Yes.
Q. What do you expect to see?
A. Well, you’d probably find a lot more, oh, I can’t come up with a good answer for you, but these horses did not look like they were being starved.
Q. Okay.
A. From my observations seeing who was eating, who was laying down, who wasn’t.
Q. Okay.
A. We didn’t bother getting horses up.
Q. Okay. What did you notice out there as far as available food for the horses?
A. There were three round bales of good quality alfalfa.
Q. And is that appropriate food for those horses in the winter?
A. It’s the best hay you could probably feed for a horse because it’s the most nutritional.
Q. Okay. And what did you observe if anything as far as water that was available for the horses?
A. When we went out back toward the barn there was a water tank and it was full. And no horses were standing around waiting to drink. So I would have thought that if they were thirsty they’d be up there drinking. So apparently they had drunk and they were out there eating.
Q. All right. So nothing out in the pasture that suggested to you they were not being fed.
A. Right.
Q. Nothing that suggested they were not getting water.
A. Right.
Q. While out in the pasture did Matt ask you to examine a particular horse that had either a pelvis or a hip type injury?
A. Yes.
Q. Tell us what you remember about that.
A. Basically I walked up to the horse and he said it was in the rear end and as a way of testing it I kind of felt my hands on her leg, but I grabbed the tail, pulled it to the left, and if I recall, the horse resisted, and I pulled it to the right and it kind of, kind of gave in to that. In other words, it didn’t put a lot of pressure on the weight to keep me from pulling it.
Q. All right. And when you’re doing that pulling, what is it that you’re looking for?
A. Well, see which side he was sore on.
Q. Okay. And what would you expect to see him do to indicate either something’s sore or something’s not sore?
A. Well, he would give a little on the sore side.
Q. Okay. And he did that?
A. Yes.
Q. On the one side?
A. A little bit.
Q. Okay.
A. I put my hand up on his hip and I rocked him and I could not feel any crepitation from bone or anything, and I suggested to Matt that he either take him to State or to Doc Irving and have him X-rayed.
Q. All right. How concerned were you at that time about that particular horse following that examination?
A. Not, not very concerned, only because he kept moving on.
Q. Okay. You actually saw the horse move himself?
A. He took a step or two.
Q. Okay. And when you, you know, first your attention’s brought to that horse and then you examine the horse and then you see him move on, do you see that horse exhibiting any signs of lameness?
A. He was sore in the back end, but as far as actual movement to make him run or anything, we didn’t do that.
Q. Okay. If that horse was in extreme pain or extremely uncomfortable with that pelvis, what would you expect to see? Anything different from what you did see?
A. Well, he was standing, he wasn’t showing me extreme pain or discomfort.
Q. Okay.
A. But I didn’t see him moving. I mean other than a step or two and he just moved.
Q. All right. But from what you could see you don’t see signs of severe lameness or any reluctance to move on his part?
A. I did not examine him totally for lameness, no.
Q. Okay.
A. But I was pretty sure it was down in the lower part of the foot or up in the stifle.
Q. That wasn’t something that you considered to need emergency treatment but just something that should be looked at quickly?
A. Yes, it should be looked at.
Q. All right.
A. And I wasn’t there to, to examine, I was there as an observer I guess.
Q. Okay. And what was your overall opinion on the health condition of the horses in the pasture?
A. They were, they wintered pretty hard but they were o—-they made it through the winter.
Q. Okay. And as to the horses in the pasture that we have talked abut, was there anything that you observed that would lead you to suspect either torture or failure to provide with adequate care?
A. Nothing at all. There was hay, there was water, there was-—I didn’t see grain, but there was hay and water.
Q. All right. Then you went to look at some horses in the barn after that.
A. Yes.
Q. And what observations did you make about the barn in general?
A. Well, there were a bunch of yearlings in a, in a back end of the barn there and they were lined up, there must have been eight or ten or more, and they were eating hay. They had rough coats. They were standing on manure that was piled up, it was dry.
Q. Do you have an issue with that manure?
A. Considering the weather, no.
Q. Okay. What else did you observe?
A. I didn’t see any grain in the feed bunk but I know there was hay there and they were all eating and they all were pushing each other around and they were looking at us and so forth. And we observed a filly that had a swollen right rear ankle.
Q. Let me ask you a couple questions about the yearlings before we move on to that filly.
A. Yes.
Q. Did the yearlings have a source of water available to them in that pen?
A. I don’t honestly remember seeing water there one way or the other.
Q. And as far as the yearlings in general were concerned, did you note any signs of illness or injury to them?
A. None of them had snotty nose and they all seemed to be alert and active. Rough winter coats. And again, I didn’t touch or look at any individual closely.
Q. Okay. But I, if you would have seen something that would have drawn your attention or looked to be a concern to you, would you have gone farther with an examination?
A. I believe I asked Matt when was the last time he wormed them.
Q. Okay.
A. And he said I believe in December or January, and they were due is what he said.
Q. Okay. All right. And then we were going to talk about to another horse that was in there that had a particular leg injury, the filly.
A. Yes.
Q. Tell me about that if you would please.
A. Well, the horse had a swollen right rear ankle. It looked like it was kind of swollen, I think a lot of it with proud flesh had built up—-
Q. What does that mean?
A. Well, it’s kind of like a cancer. When you get a wound in a lower leg, it kind of just keeps growing instead of healing like a skin wound higher up.
Q. Okay.
A. And basically it, Matt explained that it was the result of a wire that he had removed and it got wrapped around it in the pasture or wherever and that he had an appointment with Dr. Irving that morning but then had to cancel it and he had one in the afternoon and Officer Wheaton said to cancel that one.
Q. Okay. And what kind of an examination did you make of that wound?
A. What kind of issues?
Q. What kind of examination did you make of that wound?
A. Just a visual.
Q. Okay.
A. I did not see any kind of wire or anything. I looked around it and it, it looked like a wire or rope cut and it just wasn’t healing.
Q. Is this an injury on a horse that, of a type that you have seen before?
A. Yes.
Q. All right. And is it something that’s fairly common?
A. Fairly common.
Q. All right. You’ve treated numerous injuries like that in your practice?
A. My own filly had an injury like that. She went from ten thousand down to nothing.
Q. Okay. I mean is that just something that sometimes comes with the territory in owning horses?
A. It can happen.
Q. All right. Is there a problem or an issue for a caretaker of horses treating an injury like this on their own before trying to get vet services involved?
A. No.
Q. All right. Why do you say that?
A. Because most horse people will treat their own horses for a day or two and then if, or they may call and consult with a vet, but most people do treat their own horses for a day or two before they call a vet, unless it’s, you know, an open gashing wound that can be sutured or something like that. That’s why I say that.
Q. And as far as a particular injury like this. You know, how do you know when to seek a vet service as opposed to how long you can try to treat it on your own?
A. It depends on what you’re getting in your response. If I was an owner, if I’m not getting a response I’m going to call a vet. And whether it’s a day or two or three, if I’m treating it like I’ve treated other horses hopefully it’s going to respond.
Q. Okay. So every horse caretaker’s got to use their judgment as far as that’s concerned?
A. True.
Q. All right. But it’s not something that you necessarily run straight to the vet with?
A. I wouldn’t.
Q. Okay. As to the horses that you observed in the barn that we have talked about. Is there anything that you observed that would lead you to suspect any kind of torture or failure to provide with adequate care?
A. No.
Q. And that includes the horse with the leg injury as well.
A. I don’t know what kind of care Matt had given the horse.
Q. Okay.
A. But at the same time, he had made arrangements for it to be looked by Dr. Irving.
Q. Okay. Now, as, you know, an individual or a group of people having a herd of sixty-nine horses. As far as the variances that you’re going to see in the horses, as far as health status and body weight and things like that, do you expect that they’re all going to be the same or is there going to be some kind of range in health?
A. Well, there’s going to be a range between good and-—fair, good and fat.
Q. Even with a good caretaker.
A. Yes.
Q. All right. Now, the vets that came from the Department of Agriculture about four days after you were there on March twentieth reported and testified that fifty-six out of sixty-nine of the horses on that farm had a body condition score of four or five on March twentieth. Okay?
A. Okay.
Q. And I think you had said four or five is where we want the horses on a body condition score?
A. Mm-Hmm.
Q. All right.
THE COURT: Is that a yes?
THE WITNESS: Yes.
BY MR. DUNGAN:
Q. All right. My question for you then is would it be possible to have fifty-six out of sixty-nine horses in ideal or near ideal condition on March twentieth if the herd had not been provided with adequate food, water and shelter throughout the winter.
A. Yes.
Q. It would be possible?
A. It would be possible to have some variations in the horses, even though you’re providing good grain and so forth.
Q. Okay. Does the fact that fifty-six out of sixty-nine of the horses had an ideal or near ideal condition essentially mean that they must have had adequate food, water and shelter throughout the winter?
A. I would think so, yes.
Q. Okay. And then I’m assuming if they didn’t have adequate food, water and shelter, we’re not going to have such a high percentage that have an ideal or near ideal body condition score.
A. Yes.
Q. I mean, would it be possible to have fifty-six out of sixty-nine horses in ideal or near ideal body condition if the herd had been subjected to torture, abuse or neglect?
A. Would it be what?
Q. Would it be possible to have fifty-six out of sixty-nine horses—-
A. If they were tortured?
Q. If they were subject to torture, abuse or neglect throughout the winter?
A. I doubt it.
Q. Okay. If there had been some type of systematic or ongoing torture, abuse or failure to provide out at that farm during the winter, would that be something that you would expect to have noticed in all of the horses?
A. I believe so, yes.
Q. All right. And you indicated that you own horses yourself.
A. Yes.
Q. Winter inside or outside?
A. I winter them outside till about three or four weeks before they’re due to foal.
Q.
Okay. And as far as shelter is
concerned, what is considered adequate shelter for
A. Well, it depends on whether they are show horses or whether you have field horses or whatever, but--
Q.
Horses like we had in
A.
In
Q.
Okay. And, you know, as far as
horses the type, you know, that you see at
A. They’re going to lose weight. It was extremely cold this winter. I mean, it was several days when it didn’t get above twenty and that’s hard on horses that are kept outside.
Q.
Could a horse wintering outside in
A. True.
Q. What is it that makes it so?
A. Rough coat, thin. Maybe they, I don’t know exactly what kind of building conditions, you know, maybe some of them were complaining he doesn’t have a stall to be in instead of a lean-to.
Q.
And do you see any examples with your own practice where you’ve been
called out because someone sees a
A. I haven’t been called out by people, but I have been called out by clients that are concerned about their horses wintering bad.
Q. Okay. And is it always the case that, I mean, when you go out there is it the case that they are wintering bad or is it just--
A. Well, if they are wintering bad, I make suggestions with feeding and throwing a blanket on to help preserve body heat and so forth.
Q.
Okay. And on the
A. No.
Q. And you had mentioned something about show horses as opposed to these different kind of horses. What did you mean by that?
A. Well, I considered when I saw the sixty-nine horses out there in the back, kind of like range horses like out west. The mustangs, they’re out in the winter all winter. They survive, some of them don’t make it, but they survive, and show horse people bring their horses in to barns, they put winter coats on, or coats on them to try and get them to shed out early because the show season probably starts in April and May, and most of these horses over there are not show horses, they’re riding horses from the standpoint of I understand as barrel horses and what--not, so I don’t see any reason to be overly concerned about the winter coat and being outside.
Q. All right. But there are those who would prefer that their horses not grow winter coats.
A. Oh, sure.
Q. To get them I guess—-
A. Keep them nice and shiny all winter.
Q. Okay. And the people that don’t do that aren’t necessarily abusing or neglecting or torturing the horses.
A. No.
Q.
All right. As to the
A. From what I saw that day there was food there and water there. I don’t know, was it fifty acres or more, there was no grass really to speak of because it was just the first part of March and it was just starting to grow, but I don’t know the pasture setup, how he was working that. As long as they had hay and water and grain, I, there was enough room there for horses to get away from one another, yes.
Q. Okay. And the shelter that you saw, do you consider that adequate for the size of that herd?
A. I didn’t actually go back out of that barn to look at any other shelter. So I can’t say what was behind the barn. The barn that we were in with the yearlings. I did not go back that way. And I was told that there’s a shelter back there, but I have no idea what it was.
Q. Okay. If the horses had not had adequate shelter throughout the winter, would you have expected to have seen more problems out at that farm than what you saw?
A. Yes and no.
Q. What’s the yes part?
A. You could see more problems because of the weather, or I mean if they were just strictly out without any shelter they’d probably be thinner, but I’m thinking that they probably walked down near the barns or shelter that supposedly was there.
Q. Okay.
A. And of course they herd up together too sometimes just to keep warm.
Q. Sure. And the available food and water that you saw when you were out there, did you consider that to be adequate for the size of this herd?
A. Yes.
Q. All right. And you did examine some of the hay.
A. Mm-Hmm.
Q. What did you think of that?
A. Good quality alfalfa.
Q. Didn’t have any problem.
A. I’d go buy it.
Q. Okay. Now, once you finished, you know, your walk through the farm with Matt and Officer Wheaton, did you have some conversation with them or some recommendations to them?
A. I suggested that they keep an eye on the place and make some suggestions as far as feeding and so forth and check in on him every once a week and make sure he’s feeding the horses like what I saw there that day and go from there.
Q. All right. So one of your recommendations is let Matt keep feeding the horses.
A. Yes.
Q. And if Animal Control wants to they can come and check and see on—-
A. Yes.
Q. –-what progress is being made? It seems like you were, you know, aware that we’re due for a break in the weather.
A. Yes.
Q. And that that weather was going to be important to those horses.
A. Mm-Hmm.
Q. Yes?
A. Yes.
Q. What difference was, you know, four or five weeks of warm weather going to do? What does that do for the condition of the horses?
A. Well, the grass is going to grow, they’re not going to burn off as much energy trying to stay warm, and it just, everybody feels better in the spring. I felt the horses would come around.
Q. Rough coats are going to shed?
A. They’re going to shed out and I’m sure they’re all shed out by now.
Q. All right. Did you recommend in any way seizure of the farm and horses?
A. I did not.
Q. All right. Have you before in other cases?
A. No.
Q. Would you if you saw that it was warranted?
A. If I thought it was warranted, yes.
Q. All right. But you didn’t in this case.
A. No.
Q. All right. On March sixteenth when you were out there, what was your understanding of who owned that farm?
A.