Now the court will move to the first, the summons and complaint filed by the prosecuting attorney, and the plaintiff indicates, the People of the State of Michigan indicate the seeking to forfeit the horses found on the property of the Turn Three Ranch located at 1281-—across the street, excuse me, from 12815 East Michigan Avenue, located in Grass Lake Township, county of Jackson, state of Michigan, under MCL 750.50, as a result of cruelty allegations. We’ve heard much discussion by counsel about the statute involved here, 750.50, the definitions of adequate care provision, neglect, sanitary condition, state of good health, water, and also the provision that provides that an owner, possessor or person having charge or custody of an animal shall not do any of the following, and it appears the operative section is A, small case A under that, fail to provide an animal with adequate care. In statutory construction when you look at language that the Legislature has used, you try to determine if there is any ambiguity there or if it’s clear, and if it’s clear and straightforward, you give it its common sense meaning to what the Legislature has decided. Judges should not when that’s the case try to figure out, well, this is what the Legislature meant or this is what I will decide that the Legislature meant. It says an owner. There’s been testimony here concerning Mr. Henderson’s relationship to the farm as the owner from himself and from Mr. Mercier and others, not saying that that in and of itself says that the, there’s a violation of the statute here for which he has liability, we’ll talk about that some more later. But I think it does bring Mr. Henderson under the auspices of this particular statute as clearly does the remainder of that, possessor or person having the charge or custody of an animal, bringing Mr. Mercier under the statute. When the court has this type of complaint before it, and this was filed before the final disposition of the criminal charges, the prosecution may file a civil action to the court that has jurisdiction requesting that the court issue an order forfeiting the animals. Upon filing that civil action, the court shall set a hearing that shall be conducted within fourteen days or as soon as practicable after filing of the civil action, and I think we tried to adjust various schedules both in terms of attorneys and witnesses to handle this hearing. I think there were a series of conversations with the court perhaps in terms of trying to resolve the matter, trying to get the investigation as the court could plainly see from what the attorneys themselves have carried around, there needed to be substantial investigation and preparation in this matter, and I hope the court was appreciative enough particularly to Mr. Dungan’s position that I need some time to get ready for this and it’s clear from his presentation and certainly the eloquent argument this morning that he was well prepared throughout all hearings and for this morning, and as is Miss Lamp, I don’t want to leave you out, but as well, and as I said before, I certainly appreciate that type of competent and able representation. So this hearing is to be held by a judge without a jury, which we did, and the prosecuting attorney has the burden of establishing by a preponderance of evidence that a violation of this section which was 750.50, has occurred.

We often talk about what’s preponderance of the evidence, what’s probable cause, what’s reasonable suspicion, what’s clear and convincing evidence, what’s proof of guilt beyond a reasonable doubt. Well, clear and convincing evidence is the highest standard as the court understands it and is applied in very few cases but certainly in those cases it’s appropriate. I think termination of parental rights is one in which it is. There may be a number of others, but that’s clearly the highest standard, perhaps even beyond a, burden of proof beyond any reasonable doubt. And that’s the second highest standard. The next one we have is preponderance of the evidence, and unfortunately I don’t know that we have any clear definition of what that is, but it has to be more than the other side basically and some judges have described that as, well, if you got 50.1, the other side’s only got 49.9, you got the preponderance of the evidence. Preponderance of the evidence could be much greater than that, you know, up to perhaps beyond a reasonable doubt and if it’s anything less than that, then the defending party would prevail. So it’s not a very high burden as we see it in terms of clear and convincing evidence and beyond a reasonable doubt. There’s also lesser standards of, for police officers in terms of probable cause and reasonable suspicion, but those are investigative matters as opposed to burden of proof in a hearing. If the court finds that the prosecuting attorney has met the burden, then an order of immediate forfeiture shall enter unless a bond is submitted to the court clerk in terms of cash or other form of security within seventy-two hours of the hearing for the purposes outlined in the statute. For not just reasonable costs already incurred, but for any, sufficient to pay any anticipated to be incurred. And there’s provisions there if the court gets that far this morning as far as what would be expected of the defense in this case. As appropriately pointed out by certainly Miss Lamp and with the testimony of Mr. Henderson and Mr. Mercier is not admissible against them in any criminal proceeding except criminal prosecution for perjury, not waiving any constitutional rights of self incrimination, the court will consider Mr. Mercier’s and Mr. Henderson’s testimony here only in that context of the forfeiture hearing.

I want to discuss the court’s findings as far as the particular facts will, testimony of the various witnesses and this could be a bit arduous, but I think it’s necessary to have a fair record for findings of fact by the court for whatever purposes may be needed at some later time by either party.

First, Deputy Walter DeLand, Jackson County Sheriff’s Department, on March thirteenth, 2007, dispatched to the East Michigan-Maute Road area where there’s a horse farm within the jurisdiction of Jackson County in Jackson County, with horses in the roadway. He does arrive out there, but there’s no horses in the roadway, his understanding maybe he talked to somewhere there, that the neighbors across the road put them back, which I think may bring into context Mrs. Davis I believe her name is. He’s been there before he said at least five times, certainly the horses loose on East Michigan Avenue are a traffic hazard, but usually no one’s around, when he’s been out there no one’s around. He honks his horn, the horses return. In addition to the fact that it’s a traffic hazard and I don’t know whether he means that in terms of just the vehicles that are driving, but it’s certainly a hazard relative to the horses themselves, and depending on the number of times that such occurs, could very well arise to a level under the statute as far as adequate care, neglect. I’m not saying it does, but I’m just saying that it could because of that number in and of itself would trigger something in someone’s mind that if an officer has been out there at least five times there’s something going on there. And the officer described poor fencing, the horses walk right through or step over. And this was as of March thirteenth, 2007, so that fence was in that state of affairs on March thirteenth, 2007. He has a conversation with Mr. Mercier at that time, who identifies himself, who tells him horses are contained by the barn, don’t know how they got out. It seems a bit inconsistent with Mr. Mercier’s later testimony where, well, yeah, here’s how they got out, but that’s nevertheless what he says at that time. He does have a telephone conversation with Officer Wheaton concerning the condition of the farm and the fence, safety issues, horses loose, danger to the motorists. So Deputy DeLand puts things into action here over his concerns about what he has seen in the past and on that day.

Officer Wheaton testified that she’s been with the Animal Control office since October first, 2006, did have contact on March fourteenth, 2007, with Deputy DeLand. At that point then goes out to East Michigan and Maute area, has contact with Mr. and Mrs. Davis who are the neighbors across the street. She does make observations concerning the front gate and the fence line on East Michigan Avenue, as well as Maute Road, parts of the fence are on the ground, there’s clear pass to Maute Road I think if my notes are correct as far as what she had said there. Proceeds on to the farm, finds a dead horse lying in the mud on a road with a tow strap attached. She takes photographs of the area and the farm, some of which we probably saw here and then some photographs at later times perhaps the officers were there. There were open gates, down fence line, she testified she found none that would contain the horses. I have a notation here that, in my notes, that the barn door was open. I don’t recall if that’s specifically what she said or I inferred that from a combination of Mr. Mercier’s statements to Deputy DeLand and Officer Mercier’s(sic) observation. In the barn she finds the pen with eight horses in it. The horses in the pen she described were in a very poor condition, not adequate size, too many horses in it, no food or water. There was a container that she described as bone dry. Others were full, however, she stated that the horses would not have access to those. Nails, urine, feces, four to five inches thick feces, over ankles. Horses some of which were extremely emaciated. She described a grulla mare at that time, her observations on March fourteen, no muscle is the notation that the court made as far as she had seen, distended bellies, shoulder points exposed, untrimmed hooves, parasitic coats is also a general description that the officer gave concerning the horses in the pen. She talked about the stall on the right side of the pen, one with a blanket, the gate was nailed shut, urine and feces there, extension wires, food and water frozen. The hallway or aisle way I guess it would be the way others have described it, there was debris, feces and urine in the aisle way. In the stall where the stallion was blanketed there was standing water and feces in that stall. Where at least as she described it, fifty horses, I think she admitted that there wasn’t an exact count made at that time, and she said there was as using her words I think absurd amount of debris, sheet metal, piles of lumber, boards. She did not have any contact with an owner or caretaker on the farm when she was there at that time. She stated she posted at the farm on the front gate on the service door, the green card which is a twenty-four hour notice I think to probably who’s ever in charge here, please get in touch with Animal Control Shelter, although none was produced to know what it looks like, but presumably her name would have been on it there. She then leaves the farm. During this twenty-four hour period there was no contact with anyone in response to the posting. The next day on March fifteenth she goes to the Henderson property on Sager Road, the Henderson property as she describes it on Sager Road, knocks, no answer. She then posts that at the front door of the Henderson property on Sager Road. That evening she receives a telephone, she has telephone contact with Mr. Mercier. I don’t know if he called and left a message, she called back, but anyway, they made contact. Mr. Mercier indicates the horses are fine, he and Henderson own together, Mr. Henderson’s out of town. Cannot meet at that time because of out of town appointments and other things going on. The next morning on March sixteen she has telephone conversation with Mr. Mercier, get a vet to the farm. Mercier, I have an appointment to take the horse to Dr. Irving. Officer Wheaton testifies you have one hour to get a vet there. She arrives at the farm that morning and Mr. Mercier tells her that Sray will be there at eleven. I think they said she arrived at ten thirty. That’s on the telephone, excuse me. That’s to call back at ten thirty and said Sray will be there at eleven. Officer Wheaton then goes to the farm, she meets with Dr. Sray and Mr. Mercier there who are coming from the pasture. She quotes Dr. Sray at that time, a lot of stuff out there. Two mares from the pen the officer noticed that had been moved to the outside pen, the smaller, to a smaller pen with a third horse. This was a very emaciated horse according to the testimony of Officer Wheaton, with Sray’s comment that, well, the horse is old but did not weather well. There’s a chestnut, old chestnut, the old bay was in there and then grulla, which is not old. There was water and hay, debris had been moved. The court can infer from that testimony there as far as the water and the hay and the moving of the debris, that Mr. Mercier is now responding to complaints that he had heard from Officer Mercier(sic) both by telephone and also responding to the notice of the Animal Control Shelter. It is of interest at this time to the court as to Mr. Mercier’s testify(sic) was, his testimony was is there was no posting at the door, front gate and service door at the farm, he apparently had talked to some individuals at the Sager Road area that said that the Animal Control people had been there. I don’t recall if he says I then found the notice there, but the court did find Mr. Mercier’s explanation as far as why he happened to go to Mr. Henderson’s that very day after the posting at the farm is a little bit suspect to the court. At that time after the looking and I think there was no hands-on examination of the grulla mare, Sray is walking to leave and Mr. Mercier is walking into the barn. Officer Wheaton says, what about the horses in the barn, Sray, oh, there’s horses in the barn, and he turns to go to the barn. Into the barn at that time they find Mr. Mercier with a mare in the hallway, the one with the leg wound because of the wire. She testified that Dr. Sray looked at the horse about ten feet away, did not touch the horse and did not recommend any care at that time. Mr. Mercier did state the wound was about five days old, it’s been in the pen only five days and it’s been a hard winter. Dr. Sray, give it thirty days and things will green up. From that statement the court’s not clear if he’s talking about the wire horse or the farm in general. But with a comment like, things will green up, it appears that the doctor, the context is relative to the farm in general. Officer Wheaton did say that horses are naturally equipped to survive winter cold because of their coat, shelter, wind blocks, et cetera. March twentieth is the next day about which Officer Wheaton testified, search warrant, I think she participated in that, was there when the two Michigan State University vets were there, the two doctors, requesting an opinion. She walked through the farm, they went front to back, she identified a comment, I don’t know who she attributed it to, but of what, of those two Ag doctors that four horses needed immediate attention and there was reference to bay which is Dee, chestnut Easy, the grulla mare Moose, and Ice. In leaving that evening in the headlights she was able to see Elvis or Lucky Seven dragging a leg in short strides. I think B.J. Cockroft was there at that time helping Mr. Mercier with some chores and tasks at the farm. So Officer Wheaton did see on that date the leg dragging. Why didn’t see it before then, I don’t think there’s been an explanation for that. Perhaps it happened that fast, perhaps not, we’ll talk about that more soon. With respect to Seven, feed, water, wasn’t getting any better, and she was there when Dr. Hammer came to the farm with medicine, isolation, better grocery program was his recommendation. Seven was wormed at that time and I think when he said that he saw the horse later the horse was better. Officer Wheaton did observe on that day still on March twenty-seventh that Seven could not bear pressure, taken to MSU through attention of Dr. Hammer, and later euthanized. The wire, she talked about that had been removed, with Dr. Hammer medication was prescribed or applied, later found out that the wire had been removed, the X-ray showed that it had cut to the bone of the horse, later taken to Dr. Irving’s office at the defendant’s request and it was taken to Dr. Irving’s because Dr. Irving would refuse to come away from his office to examine the horse, which would seem to the court to have been a much more courteous and logical thing to do. There was on March twentieth a bloody mare with a foal dead in the pasture.

Dr. Hammer testified as to his experience predominantly in equine medicine. On March twenty-seventh did go to East Michigan and Maute Road, the horse farm, where he met Officer Wheaton and did a walk through of the farm as a general look over as he described it. Quoting, did not recognize anything that was favorable for horses. Excessive junk and debris, nails, wires. He looked at the young horses, first thought they were weanlings, all severely emaciated and parasitized. Some with worms in feces, overall very weak. Long coats, which he described as unhealthy length, the coats were in poor condition, hair loss. I think the doctor attributed that to parasites. Ribs, bones, hipbones, skulls were noticeable, no fat on these particular horses. He rated BCS two or below, same as one-—some as one, excuse me. And that’s looking at the Henneke body condition scoring. Two is very thin animal, emaciated, slight fat covering over base of spine, processes, transverse processes and lumbar vertebrae feel rounded, feel rounded, which means obviously touching is maybe the best way to determine exactly what the score would be, and then some as low as one, which is extremely emaciated, projecting parts of the body prominently, bone structure easily noticeable, no fatty tissues can be felt. Talked about the three injured horses, the first one Wire, Ice, the bay filly, open leg wound, three plus weeks at the time that he saw I think, probably longer, but three plus weeks at that time on March twenty-seventh which would at the earliest, take it to near the first of March and probably longer, some time back into the winter. And described the open leg wound as neglected, wire protruding from the tissue, embedded under the tissue. And the court, I think I do recall Dr. Hammer saying that there was, it was sticking out. I don’t know how we resolved that conflict when others did not say that, but the ultimate testimony is clearly this wire is right to the bone of the horse, severely infected, unwrapped, and I think he said he removed the wire. That’s fairly interesting in terms of Mr. Mercier’s testimony about how this horse got wrapped in the wire. We have a situation I think where the fences were not working electrically in terms of electrical fence and then Ice then gets wrapped up in this wire in a circular manner as described, in a wrapping manner as Mr. Mercier described. Taking aside the, I don’t know how this fence got unplugged statement of his, so many times and for so many days, it would seem to the court that if it’s wrapped around the leg and you cut it in the manner in which Mr. Mercier talked about, why didn’t you get the rest of it at that time, unless it was too far embedded at that time, consistent with Dr. Hammer’s observations that this has probably been there for quite some time. The stud colt, he said that’s the least serious, there was some neck abscesses, had been let go several days, had formed over a period of time. There was a bite wound draining. The paint stallion had a right rear leg severely lame, very sore on the hip. He discussed the three mares, I think indicated that they were emaciated. First the grulla mare, severely emaciated, long term. All bones, no fat at all. Heavily parasitized, is a management problem, not a health problem is the quote that I have from Dr. Hammer. The sorrel mare heaves from a chronic obstruction pulmonary disorder, COPD, and the bay mare had some dental neglect. He talked about the pasture where there was an unknown number of horses and described it as really not a pasture, was just mud and manure, but I guess pastures can vary and be in different forms and whether it’s a I guess someone had used the term dry lot versus a grass lot type of thing, he did say it was overstocked. He described one third of them as fair, two thirds thin. My notes do not reflect any comparison under the Henneke scale as far as what fair means and what thin meant to Dr. Hammer. Stallions running with the mares, indicated that’s not generally accepted to run that many mares with that—-that many stallions with that many mares simply for pedigree purposes, and as a general rule there should be two acres per horse and he’s indicating that the pasture was overstocked. It was Dr. Hammer that used the term dry lot. He said this was a dry lot operation and even if adequate feed, still not enough room, and talks of the shelters, trash, debris, excessive amount of that, shelters were not safe. And I think his attention may have been directed to the photographs we have concerning those shelters and the court observes that the before shelters are certainly in major if not total disrepair and maybe they’ve been like that for a while, maybe the horses never used them, I don’t know. We’ve heard some testimony that they’re smart, hopefully they would have stayed away from those things. But nevertheless, that was the doctor’s description of them. He recommended separating horses that needed special care, the mares and the weanlings, put them on a basic feed program, grain and hay, salt block, free choice water. His opinion was these things were not happening overnight and definitely a neglect situation. The overwhelming issue was the large number of horses. And in taking a look at that and also listening to Mr. Henderson and Mr. Mercier’s testimony concerning the finances here and how these were going and the history as they opened up, got together, boarded together and then went into this enterprise at Ranch Three, at the ranch, I think Dr. Hammer’s point is well taken. These gentleman just overextended themselves in terms of what they could handle, and certainly what Mr. Mercier could handle. It’s pretty clear to the point that he was way over his head in that respect and that Mr. Henderson because of his work in Washtenaw County and his service throughout other areas of the country, wasn’t monitoring the situation in a manner to address this issue, in the matter of wanting to be with the horses growing, buying the expensive horses at a reduced price because they’re older, having the stallion that I think Mr. Henderson mentioned was one of the top money makers, it was just a situation that Mr. Henderson apparently abdicated the care and maintenance of the farm to Mr. Mercier who it appears to the court at least at this point in the testimony, was certainly over his head.

On April fourth of 2007, as to the bay filly with the wire, it was radiographed, again as he described it, an older injury. He did consult with Dr. Irving about the radiograph. The horse was refusing to put force on that leg, very painful, and he did identify that as torture. And I think at the time that that came up we talked about People versus Fennell, F-e-n-n-e-l-l, 260 Michigan Appeals, 261, on page 266, in which the court, trial court instructed a jury with respect to a cruelty to animal course as far as how do you—-case, as far as how do you prove torture. And the court of appeals stated, quote

To prove this charge the prosecution must prove

each of the following elements beyond a reasonable

doubt. First, that the defendant killed and or

tortured an animal or did anything that resulted in

the killing or torturing of an animal. Torture means

severe physical or mental pain and agony or anguish.

And I think I read that, if I’m not mistaken, it was read to the doctor. He said under that definition, yes, we had a torture here, indicating that there certainly was severe physical pain for these horses and they were in agony and anguish--or anguish. The court didn’t find anything to indicate that that instruction was later held improper by the Supreme Court. He also talked about the paint stallion, Lucky Seven, Elvis. Severely emaciated, severely sore back legs, dietary starvation, and again applying the definition in Fennell, this horse was subject to torture. Grulla mare, quoting, I never saw one that emaciated for non health reasons. This was over five to six months the horses was suffering and it met the definition of torture.

Dr. Denise Altemose, a field veterinarian from the Department of Agriculture, was there on March twentieth, early a.m., stayed several hours at East Michigan Avenue and she was there the same day that the field vet Vicki Sue Chickering was also there, evaluated the animals and the facilities. Here concerns as she testified were the body condition in general, visible bony areas, thin, low BCS. Facilities were of concern, lack of shelter were concern. She talked about the BCS, Dr. Altemose did as far as the horses. Three she indicated were animals extremely emaciated, needed immediate care. Eight to ten were two to three, very thin or thin, fat buildup cannot be felt, slight fat over over the ribs. And then the rest, four to five. Four moderately thin, five moderate. And I think there was testimony concerning where we, what’s four and five mean in terms of that’s where we want to be. As you move the scale you end up at nine, extremely fat. From one you got to figure somewhere in the middle as where the horse should be, so whether it’s four plus, five minus, look at four and a half, in the area of five. I don’t recall Dr. Altemose gave a count as far as how many were four, how many five, but she did testify it was by sight only. There was a dead horse in a trailer, been there a little while, at least one week she testified at that point. The body had been chewed on, decomposed, eyes were dry. Also at the farm there were sixty-nine live horses, a dead horse, a dead foal which was full term. In the barn there were eleven, large pasture of forty-nine, there was a mixture, bare soil, manure, broken fencing, shelters part gone, hay of poor quality, course sticks, oak leaves. In a pen there were three that did have good hay, outside there were six, lice. Dr. Altemose’s quote, level of neglect not seen before, in her opinion then, yes, her opinion then failed to receive adequate food, shelter, water for months. Talking about the water tank. There was one water, had thin ice on the top of it. Another one had broken ice, others were empty. She could not tell if it was used for food or water. The shelters were not adequate size for the number of horses, the pasture roof was gone off one of them, the pen was too small, for I presume the number of horses that were in the pen. The barn, nine were in the pen, two in separate pens, there was debris, trash, tin with sharp edges, broken boards, sharp edges, manure, no bedding, hay, there were two bales that she described as good quality, not good quality water. My notes don’t reflect as far as what the details were on that. Miss Lamp did argue that in a certain way and tied in with the greater witness from DEQ as far as what that meant, although that was from the stream, so we don’t know if the not good quality water in the barn was from that stream, some other source, I don’t know. The bay mare, severe injury to the leg which is visual and visible to the doctor, parasites, external lice, internal worms, rough coats with hair missing, extended stomachs.

Dr. Chickering also was there, field vet with state agriculture, she had safety concerns listed as, the court got them as follows: large number of horses, fences, wires, boards and nails, sheet metal, the buildings were of concern, the horses were of poor condition, external-internal parasites and injuries. There was a dead horse in the trailer, had been there for multiple days that had decompensation(sic), and the eyes were deteriorated. Horses were evaluated visually only. Three were emaciated, barely one on the Henneke scale. Two to three in the barn thin to very thin. That would be two to three. In the field two to three, thin to very thin, the rest thin to moderate, normal. Didn’t get a number, but I think the court can conclude from there that Dr. Chickering’s talking about the four or five range, moderately thin and moderate. The barn, she observed debris, the water was not adequate. There were multiple tanks around the farm, the stalls in the barn too deep for the young horses, outside empty, one had, again, had hard access, one frozen over. The stream was an obvious water source she testified, there were tracks, it appeared from her observations and experience that the horses were going there or trying to get there, but the water in her statement was an unknown quality, but physically that was an unsafe area for the horses because of difficult access, there was a post apparently in the way or of concern to the doctor and the slope down to the river, or to the stream. Proved not adequate, not enough in storage or fields for the number of horses again, barn had nice hay she described it, pasture there were bales. Field very poor quality, horses were picking at it. Her inference was that was, well, they were hungry. Oak leaves, stem, mold, very coarse and wrapped. I don’t know what wrapped means in terms of a bad thing. We’ve heard testimony both ways on that. Certainly it makes sense I think to keep it wrapped in terms of maybe pecking order or what horses do to get to the, to the hay because if it gets unwrapped and is laying there, the elements I think might affect it more greatly, including wind could blow it away. I’m not a hay expert, but if you look at the bales you think hay’s going to blow around, it is just lousy grass I guess for no better term, so the wrapping, that it’s wrapped is not of concern and I think Mr. Mercier, I don’t know if Mr. Henderson testified that, well, you don’t unwrap it because, and I think that’s acceptable explanation to the court, the horses will start playing with it and stuff like that and they want to get to the hay so if it’s wrapped they might tend to stay away from it. Shelters not adequate, they could not keep all the animals, and she did describe the wood line could not provide adequate shelter. She’s there in March I believe on the twentieth, on forfeiture day. I don’t have any more details in my notes as far as exactly what that means, but it presumably in the winter it wasn’t able to keep the horses out of the wind sufficiently enough, her opinion was many months, longstanding conditions as to the horses and the buildings.

Dr. Marteniuk, licensed vet at the Michigan State University Large Animal Clinic, dealt with Seven, Lucky Seven or Elvis, the one year old paint on April eleven, 2007, she made an evaluation and potential treatment. Poor body condition and had the horse at two to two and a half, very thin to thin. Dr. Hammer had described that paint as severely emaciated, so it did appear between the time Dr. Hammer saw it and others had seen it to April eleventh, the condition was improving. According of course from that whatever exercise the Animal Control is performing with respect to the horse at that time was having some success. Unfortunately it was still a low BCS. Severe lice, Dr. Marteniuk, worst she’s ever seen, was going to use this horse for her classes, painful hind end, severe degenerative arthritis, injury of a past infection, longstanding condition, months was her description, extremely painful, lame, reluctant to move, certainly not a normal gait. The horse was euthanized. I don’t recall if the court talked with her about the definition of torture or the attorneys did, but Dr. Marteniuk described the horse as tortured. She was at the farm on April twenty—seventh at the Grass Lake farm at the request of the Lenawee Horse Rescue, walked around, did BCS of several horses and I think there’s a chart and a letter that followed on that. That’s exhibit 28. She does put on the chart Mouse, I don’t know whether she means Moose or there’s a Mouse, if there’s a horse named Mouse. I haven’t heard that and there, and I saw that before when she did that. She had a body score of one to one and a half. The wire cut on leg poor. That was on April twenty-seventh. That would appear to the court to have some improvement in the horse since it was first seen from the scores they had before. Other scores, the bay mare one, others were good. Four and a half for the chestnut mare with foal, three and a half, chestnut mare not pregnant, pregnant chestnut mare with bowed tendon, four, quarter horse stallion four, paint stallion five, and this is on April twenty-seventh, five weeks roughly after the court, Judge Falahee, ordered the horses seized. She indicated the rest of the adult horses were not individually scored, but appeared in adequate body condition. She didn’t put a score on that, what adequate means. The yearlings appeared quite small for their age with still winter coats present. I don’t know if that’s a bad thing or a consistent with what they would do through a winter. On April twenty-seventh hay and water present in all stalls, pastures and paddocks, most of the piles of debris were still present outside the pastures. Large pile of manure was present in the mares’ pasture, some appeared older, contained debris, while the newer material appeared to contain only shavings and manure. So while it appears that on April twenty-seventh we’re making some progress, we still as far as the cleanup had some work to do.

MaryBeth Knott testified, familiar with the farm, drive past there every day. She was there once, unknown when. She says she’s a farrier, trims and shoes horses, she’s looking for business so she offers her services to the male that was there who she identified as Mr. Mercier who said not interested. I don’t know the time frame when that happened, whether it was one year, two years, five years ago, so maybe at that particular point in time Mr. Mercier with his, I think testified about experience and training in that area, Miss Knott was not needed. She described it as not interested, but I don’t consider that to be a bad remark or a negative comment by Mr. Mercier in any way, matter of business. Maybe they couldn’t afford it, maybe it was just a day before the forfeiture, I don’t know, but the context was difficult and that’s not MaryBeth Knott’s fault, she’s, just didn’t know. But she did make a recent inquiry she felt in February or early March in terms of breeding for her mare. She went on to the web site for the ranch and through the advertisement that she found there, she telephoned James Henderson, asked for that person when the person answered and a male, he, confirmed that he is James Henderson. He indicates he’s not available, but contact Mercier. She didn’t take any further attempts on that, perhaps because of the reaction she received from Mr. Mercier before, I don’t know. And that’s I think at this point the first witness that brings Mr. Henderson into play as having something to do with the farm. His telephone number is on the web site, does answer the phone for that telephone number, refers to Mr. Mercier, whether his contact relationship with the farm becomes greater or not, we don’t yet know.

We do have Patricia Davis. The court finds this witness to be extremely significant. She lives across the street from the horse farm, she’s a horse person herself. I think she said at some point horse owner for twenty years, although not at that time I think. She had observations of activities and persons a the farm, she can see the farm easily from her front porch, people coming and going, which is in direct contradiction to Mr. Mercier’s testimony who apparently says he stood on the front porch and you can’t see the farm or at least an area of the farm that Miss Davis said that she could see the farm. I find Miss Davis’s testimony on that point more credible that Mr. Mercier’s. She did see individuals going to the farm since December of 2006, every five weeks. I don’t know how significant as far as how often she sees them going to the farm is, because she works during the day. I don’t recall writing down, I know she worked in Ann Arbor, I don’t recall the hours, or the Ann Arbor area anyway in Washtenaw County. So Mr. Mercier and or Mr. Henderson could be going to the farm on a regular basis from December, 2006, through March twentieth, 2007. But she did indicate that she did see both of them going to the farm on various times over that five week period after December, 2006, and from the court’s recollection of Mr. Henderson’s testimony, he had no out of state obligations in January of 2007. So that does match with Miss Davis’s testimony that Mr. Hender--she saw Mr. Henderson during that period of time because he was at least in state. Now, and, his work hours seem to coincide to some extent with her work hours, so could very well have seen him in the early morning or at night or on weekends. Although she does say that she could not see the entry through the Maute gate at that time. The last time she made an observation early February, she estimated I think February tenth, and that has to be downplayed somewhat because of her work schedule and even Mr. Mercier’s schedule as far as going to the farm and Mr. Henderson’s statement that I wasn’t there in 2007. She said she could hear the tractor or the truck on the farm so she’s aware that there were at least persons there and she’s familiar with, I don’t know how long she said that she had lived at that address, but it was enough time so she could clearly identify these two gentlemen in the courtroom. She did see bales of hay in December. She says that’s the last time she saw any hay. Well, that’s, if she’s working maybe the horse ate all the hay every day, I don’t know, which is I guess a proposition that could be based on how if you don’t give them a lot of hay all the time, they’re going to eat it all right away. That’s how I do it, so I wouldn’t be surprised if horses do it the same way. So again, you know, but at least she said she saw bales of hay, last time she saw any hay was December. It would be a little bit strange for her not to see any hay from December to March twentieth, but possible. She was asked if she saw any changes in the horses’ condition. I don’t recall that there was a definitive answer on that point. I do have a question mark here as far as whether she really did see that or what. Clearly in April of 2005 the horses were out of the pen two times across Michigan Avenue, they come over her front yard and they’re just content to eat the grass there. Five or six horses. She does talk about them as matted tail and mane, long hooves, a little undernourished, but generally healthy. And some of that matting, long hooves, might be the winter part coming out of early April, in Michigan it’s often still winter, and nature as it is, I think probably the horses know when to get rid of their coat or don’t. July of 2005 the same horses in the front yard, same condition, and I read from that, matted, long hooves, a little under nourished, which would be interesting in July of 2005, as to why they’re in that same condition that they were in early April of 2005. And they walked over to the building area, I think she said that she may have accompanied them to make sure they got there. March, mid 2007, four or five horses in the road, trying to corral, skinnier, thinner than she’d seen them before. Again perhaps the winter. Hooves quite a bit longer, mane and hair quite matted. And I think at that particular time is when a call was made that brought officer, or Deputy DeLand into the picture. Stated that she had called the police several times over the two and a half years, I guess she’s been there two and a half years then, called police several times over two and a half years, did not see any injuries to the horses.

Officer Dunlap testified working with Animal Control for six and a half years. She was at the horse farm on March twentieth, that was the first time she was there assisting Officer Wheaton in the execution of a search warrant. There was contact made with Mr. Mercier, he received a copy of the search warrant. He indicated he was providing hay four times a day. She did confirm Mercier’s appointment with Dr. Irving for Wire on that day. There was then a lengthy discussion in terms of what Officer Dunlap had put in the affidavit as far as some of the comments concerning Dr. Sray’s relationship with Mr. Mercier, a number of other things. Mr. Dungan had described that in his statement to the court as lies. I didn’t read the search warrant. I don’t know, I didn’t sign the search warrant, I don’t recall, I think it was Judge Falahee. I guess we’ll have to leave that up at some later time if there is in the, whatever may happen after this to decide what a court may find as far as Officer Dunlap’s truthfulness and credibility as far as the facts in the search warrant, affidavit.

Laura Steenrod testified, the owner of an equestrian center where she boards horses, she does limited breeding, she does have experience and training in herd management. On March twenty-seventh of 2007, she does go to Turn Three Ranch as a consultant for the nonprofit Leelanau Horse Rescue, arrived there, she’s surprised at the amount of debris, the items in the pasture, the rundown appearance of the farm. She makes observations of the shelters as far as their condition, undernourished animals, the ones in the smaller paddock I think, if my note is correct. She described the herd as pretty rough. In describing the paddock, exposed ribs and hips, sunken neck, emaciated condition. I didn’t have a note there as far as how many horses that she observed in that condition. She identified a priority of food and water, to which the horse rescue provided to the Animal Control and then the horse rescue also provided cleaning, general labor, buildings, bed and shelters and cleaning, and I think she described the shelters that were then built by the Lenawee Horse Rescue-—Leelanau Horse Rescue. In the barn she talked about an old hose, tremendous amount of feces she described as several inches, lead ropes, binder twine, sheet metal, wire, wood, railroad ties and nails around on the area in the barn. They did reconstruct the shelters because the ones there were not adequate, they had exposed steel edges, collapsed or collapsing, and were too small. Her opinion was someone didn’t like the horses very well. I don’t know if I agree with that because I think Mr. Henderson and Mr. Mercier are very sincere in their concern for the horses and the steps that they’ve taken. I would interpret that opinion more in my way is that maybe there was an over extension here as a result leading to what we did see on March fifteen, sixteen, and days later. Looked at the grulla mare. There was a comparison between March twenty-seventh and then later when she returned approximately two months later, more weight on the grulla mare at that time.

Rachel Matthews testified from the DEQ, State of Michigan Environmental Quality Analyst, East Michigan and Avenue and Maute, took some samples from the stream which she described as a county drainage ditch that traversed quite a distance I think as I recall she said through the county. Horses could get to the water. There was trash in the water bed, although I don’t know the description of that, that that would be in any way attributed to Mr. Henderson or Mr. Mercier because I got the impression that this water flowed and trash gets caught up in the stream, may very well flow down from someplace else, but nevertheless it’s there in the water bed as she described it, exposed to the horses. She took samples on the next day, March twenty-second. There was E coli in the downstream of this ditch, well above acceptable levels. She did speak with Mr. Henderson, effect on the horses, diarrhea which may very well explain the excessive amount of manure. Not sure, there’s no connection made to that, but the court could infer that might be a reason.

After that we talked about Arthur Feldkamp and Perry Holt(sic) were two individuals that testified concerning the business of selling hay; Feldkamp in bales, or both in bales, and that their contact, they know Mr. Mercier, their contact with him, cash customer buying hay, small bales, in the last year during the winter months usually, one to two a week. I think it was fifteen to forty-five bales per visit. He doesn’t write it down until after Wheaton called. And that strikes the court as somewhat suspect. I guess he could use a general cash receipt when the IRS comes snooping around, but I don’t know. No receipts to Mr. Mercier, Mr. Mercier never asked. There’s also some time during the summer that Mr. Mercier would visit with Mr. Feldkamp to purchase hay, the last of which I think he testified was March, 2007, he thinks before St. Patrick’s Day, about two weeks before that I guess. He knows Mr. Henderson through his spouse, who has purchased, and Mr. Henderson has purchased hay approximately a year ago this past winter, in 2006, 2007 he did not purchase, it was Mr. Mercier that was responsible or did come to his farm for that. He does recordkeeping, a notepad, a ledger and, as I said, no receipts to Mercier, did not bring any receipts to the court. Excuse me, any records to the court. Perry Holt(sic) testified again, sells hay, sells to Mercier for better than a year, every other day or every third day from December twenty-six to March, 2007. Mercier used his, I think Mr. Holt’s hay wagon around March first and took whatever hay could fit on there. He does not give receipts and Mr. Mercier never asked. Those two witnesses are interesting in terms of the record keeping here of Mr. Henderson and Mr. Mercier. When the court asked I think Mr. Henderson about what kind of records do you keep, do you keep them on the farm, where do you keep them. Well, they’re in a drawer. In a drawer at the farm? No, they’re in a drawer at my house and then things just get stuck in there. It would strike the court that, and I don’t say Mr. Feldkamp and Mr. Haag I guess it is, Holt, no, it’s Holt, aren’t truthful with the court, but they could just as we get to this gentleman who had the wrong cars driving up and down Maute Road, who the court will discount as seeing Mr. Henderson, memories are interesting and we’ve had a lot of statements about the, well, the memory must be this way, the memory that way, but the telling problem the court has is that Mr. Henderson and Mr. Mercier never produce any receipts to show they’re spending all this money. At least Mr. Mercier’s spending all this money and apparently Mr. Henderson may not care. He says, well, we put five thousand dollars in a drawer, always eight hundred, and Mr. Mercier can come and get it anytime he wants. The court is concerned about the lack of any showing of any receipts towards the payment for the maintenance of these horses.

Billie Jo Cockroft testified although she said she’s not a horse owner, has some interest through Mr. Mercier, very close friend for over twenty years, he’s a godfather to her daughter, familiar with the farm through Matt and friends, rides horses, helps around the farm. March twentieth was the last time she was there and that was to help feed the horses. Before that I think the last time she said she was there July, August, fall of 2006 before it turned winter or at least cold, stopped at the gate, met Mercier, dropped off something, I don’t know whether it was a person or an object. Thought the condition of the farm was fine, he did pick up, the fencing was okay. Nothing unusual about the horses, none that were abused, tortured or deprived of food or water. Noting that this, her last time that she was there was the fall of 2006, although I guess that could end December twenty-first, 2006, but from her testimony I got the impression it was more towards August than it was towards December. Mr. Mercier does live with her at her residence for a period of time, well, October, November of 2006 until March twentieth. He would leave to do chores every day between eight and eleven, after dinner he would often return then until after dark before he got home. The last time she saw Mr. Henderson at the farm was June four, 2006, which happened to be Mr. Mercier’s birthday, two other times a year and a half to two years ago. The court does not give a lot of weight to Miss Cockroft’s testimony, not in the context that she’s not credible, but in terms of the timing of her testimony as far as when she last saw the farm in between the fall of 2006 and March twentieth of 2007, but does accept her description as adequate and truthful. I didn’t find anything to indicate there. Although I think didn’t we have a brouhaha over her and the web site and stuff like that which the court, I don’t know whether she’s truthful on that or not, you always hear people complaining about other people using their web site and things like this, I guess it’s possible, but I didn’t, I don’t discount Billie Jo Cockroft’s testimony because of that. I thought it was interesting trying to understand it, but I don’t think she was up to anything evil in that respect. But only she knows if she did anything and if she did it for an evil purpose.

Dr. Sray is next. Vast experience small animal and equine practitioner, he’s a horse owner himself, represented the Animal Control for twenty-eight years approximately on a consulting basis, had handled several horse cases with them, he believes six, but he’s never testified. I think the last one he talked about a horse in February, on February seventh, Ackerson Lake Road with Officer Wheaton involving some mustangs. His BCS scoring was average, that’s where we get the average to ideal I think from Dr. Sray at five, which is the moderate testimony. He believes that the horses will go up forty-five pounds up and down on a regular basis. A horse not--well, excuse me. The average or ideal is five, excuse me, I’m not saying he’s saying these horses were, but that’s where we get the five that you were talking about, Mr. Dungan. And they go up forty-five pounds up and down from time to time. They don’t necessarily maintain, horses don’t maintain same weight, it fluctuates often. You prefer a four or five. Easy keepers, hard keepers, could be any horse of any age. What effect on weight. Diet, grain, grass, time of year, weather, whether it’s winter or summer, they burn weight more in the winter, they shiver to keep warm, water, health, age, parasites, exercise, environment, herd dominance. One of the observations I made of Dr. Sray is he didn’t want to be at the horse farm on March fifteenth and he didn’t want to be here to testify. And I think it was a situation in which Mr. Mercier placed him where he was very uncomfortable on short notice on the horse farm that day. Also in terms of his testimony, you know, experts don’t necessarily have to say it’s going to be this way, but probably you could say that I can’t come up with a good answer for you. And I don’t know whether Dr. Sray was hedging because of the conflict that he was, problems he was having there or what, but certainly the court was bothered with a person of his experience and knowledge in this area and the knowledge that the farm having been there and Mr. Mercier, although it might have been limited contact and I believe that you two guys aren’t buddies for the last twenty years as he testified as well. He did indicate the winter from 2006-2007 was particularly rough for a long spell, February and the first part of March, low temperatures. And I think that was an area that I explored with Mr. Mercier about, maybe it was Mr. Henderson, I think probably Mr. Mercier, about Mr. Mead and coming to the farm January after his daughter was born when he said it was fair weather for a winter, Michigan winter, and Mr. Mercier, yes, it was Mr. Mercier because he reacted very quickly and appropriately, I was probably badgering him, no, it was a tough winter all winter, it was cold, it was snow everywhere. Well, Dr. Sray says, well, February and the first part of March is when we had the low temperatures, which means that we didn’t have them in January or they certainly became a great deal colder in February and the first part of March, leading to snow and so on and so forth. He did indicate he’s never had lice problems on his farm, which means this certainly is something that should not have been as prevalent as observed by the other doctors on this ranch on March fifteenth and days after. Apparently easily treatable, I think as far as, at least the impression I got from Dr. Sray’s testimony, very easily treatable, at least to the point where it doesn’t become to the level described by the other doctors. Did take a look at a photograph I think at the court’s request, wasn’t sure that those were the three horses in the pen in the photograph that he had seen, the court began to get a little confused about Dr. Sray’s testimony at that point. He did indicate it’s okay to winter outside and that’s what horse owners do. The winter coat looked a little rough, unkempt, not unusual to the doctor and it was not unusual for the horses to lose weight, that’s common. The older ones winter harder, dominant ones winter easier. The younger ones, there’s our probably again, probably harder. Parasites, they get lice in the winter, all horses, it’s a horse problem. Yet Dr. Sray’s never had a lice problem on his farm, doesn’t mean it can’t happen and can’t be common and that that’s a common occurrence on this ranch that we’re talking about. His visits to the farm, six professional visits over a two year period since 2005. He did see junk in the front, but did say it was fenced off from the rest of the farm. He did take a look at exhibit three, the grulla mare, could be the same, he saw that horse outside. Mr. Mercier indicated it had been sick, gas colic, caused to lose weight, off grain, and in two weeks it could lose a hundred pounds. And then he just looked across the farm, did not look at the stallions in the pen, just observed the barns, did not the shelters. Mr. Dungan and he talked about the farm drawing I think, maybe it was Miss Lamp, and in talking about what his role was there at that time, there as an observer, I guess. He was there in the late a.m. which is consistent with what Officer Wheaton and Mr. Mercier testified to. Mr. Mercier was there, a dead horse was there, and he talked about he did not examine. Mr. Mercier said, I don’t know what happened, and I think if people will remember, I asked Mr. Sray, Dr. Sray, you didn’t ask Mr. Mercier about the horse? No. Didn’t you care? Well, yeah, I cared but as Mr. Mercier later testified, well, unless it was doing this, that or the other thing, the horse is dead, let’s dispose of it. I don’t know, that just strikes the court as a little bit cavalier with this dead horse. And particularly by the time that-—I’m not, no, that’s, not sure, by the time March twentieth came it had decomposed, eyes dried up, but maybe not on March sixteenth. Did see three underweight horses in pasture, there was a large pen, there were three older horses, extremely thin, underweight, BCS of two. The grulla mare was in that same pen, he does not know how Mercier was treating those horses. Which is an interesting observation by Dr. Sray or interesting comment as to why doesn’t he know how Mr. Mercier’s treating these horses. Didn’t you ask? Didn’t Mr. Mercier say? That’s bothersome to the court. BCS he says is subjective and clearly it is from the court’s looking at these standards on it, and observation is not good, it’s better, not-—I shouldn’t say not good, not the best way, it’s better to touch. He did recommend that Animal Control return at either that day or a later day and take a look. He did indicate the lice, it could be parasite or bacterial, normal over the winter as he had testified before. They go out in the pasture, forty or fifty horses. They had wintered hard, generally okay, no torture or lack of adequate care. Three big round bales there when he was there, still wrapped, nothing unusual about that. Good quality alfalfa. Ten to fifteen were eating hay, ten to fifteen laying on the ground, ten to fifteen standing around. He did not see any shelter but he was told that there was some in the back. There was some wire there, debris up front, but as he says, not in the pasture. No real illnesses or injury. Did not examine them, not touch, it was just visual observations. If anything serious he would have noticed. Rough winter coats, that’s normal. The horses did not look down, which to him meant they were alert and moving around. Water tank by the barn which was full. And again, the court is suspicious of Mr. Mercier when he’s having some type of con—-Officer Wheaton is trying to have some type of contact with him relative to the horses, posting something on the ranch on March fifteenth, posting something at Henderson’s farm and I think Mr. Mercier knew what was coming and brought some bales out there and then did take care of the water situation as well. He did say there was a horse with a pelvic injury. He pulled the tail to see which side was sore, gave a little to the right side, no trepidation on the bone, not very concerned. The horse did not move more than a step or two, he did not examine for any lameness. Could be looked at is how he described it and he would defer to Marteniuk’s diagnosis. In the barn the yearlings were in the back, nothing to suspect torture or lack of adequate care, no signs of illness. Eight to ten eating hay, rough winter coat, manure was one foot or two foot piled high by as I recall in the aisle way, not wet, no grain. There was debris in the aisle way, not in with the horses. Water, doesn’t remember any. Did not touch or physically examine any of the horses. There was a filly there, leg swollen right rear ankle outside the stall, common injury. Mr. Mercier says there was wire removed, it had been wrapped around, had an appointment with Irving. Did not say how old it was. Was treating with antibiotics. Dr. Sray visually observed only, did not touch. He did say it’s not healing. He did say that a person could identify horses as abused if they didn’t have a trained eye. Three to four weeks of warm weather, everything will be okay. The food, water and there was adequate room for the size of the farm.

Dr. Irving testified, large animal vet, including horses. Mr. Mercier had been a client since 2001, only horses, but not on the Grass Lake farm. He’d never met Mr. Henderson, no animal treatment or telephone conversations with him at all. Ice had the wire, not an uncommon injury, developmental. Took several weeks or months to get in the situation that it was when Dr. Irving saw the horse. Should have wrapped sooner, it would look better cosmetically. March sixteenth got a telephone call 9:14 a.m., the wire, about the wire wrapped and the horse needs attention. Getting back to Mr. Mercier not having seen the postings, it’s a little curious as far as why he’s getting hay, getting water, and making all these telephone calls after Officer Wheaton’s been to the farm. April eighteenth and April nineteenth the wire was out, he did talk with Dr. Hammer, horse was not lame, was walking sound, would identify it as three to three and a half at that time which was below the Dr. Sray test of ideal at four or five.

Sarah Jane Barnes, horse person all her life, showed horses, works carriage company, breeds several horses or has bred, trained and raced since she was nine. Knows Mr. Mercier for fifteen years, got him interested in horses. Does consult with him from time to time and Mr. Mercier will care for her horses when she’s gone or unavailable. She’s familiar with the Grass Lake ranch from the beginning, been there several times each year. On March twelfth Mr. Mercier called, the horses are out, ten, fifteen or twenty of them, asked for help to get out because of the fence on Michigan Avenue. On the same side of the road I think she described when she got there and herded them back, took about ten minutes. She did notice on the farm some debris, the shelters were okay, she did not have any concerns. In late fall of 2006, Mr. Mercier was at a seminar, Mr. Henderson was out of town, she worked there about four shifts over two days, at least an hour, at least an hour per shift. Horses all looked fine, they were healthy, no obvious injuries or starving, pasture, round bales, made sure there was water, the barns had hay and water. Mr. Henderson she said she did not see at the farm a lot, did not see at the farm in 2006 and 2007. Her understanding is Mr. Mercier is managing the farm for Mr. Henderson and Mr. Henderson owned all the horses.

Shannon Patzer testified horse person all her life, doesn’t own any. Has worked at Waterloo riding stables, had certain duties there. Met Mr. Mercier in high school before Mr. Mercier had horses. Worked at the farm since the beginning, there once every other month. December of 2006 near the end was the last time she worked there. Mid 2007(sic) she was looking for Mr. Mercier, he was not there, she looked for him for about ten or fifteen minutes, no concern at that time about the conditions. No time frame, time of day that she said that she was there. August, 2006, again near the end, was the last time she stayed there and I think that was as a result of Mr. Mercier’s broken leg, he stayed there as well and they worked together perhaps with some others to keep the horse farm under control and in good condition. She would trust Mr. Mercier with her own horses, although she doesn’t own any. Her understanding was is that Mr. Mercier had care of the farm. She did see Mr. Henderson at the farm near the end of August of 2006. I don’t recall if that’s the bonfire time or not, but there was a bonfire where Mr. Henderson said that he stopped out there and I think it was in August. And she understands he was in charge financially and owned the horses.

Elana Rybak, that’s certainly a bright, articulate person, been to the farm a number of occasions, clearly very excited about the opportunity that was provided to her there. When there she, Mr. Mercier would take care of the day to day operations and would supervise her as she worked there too up to I think fall of 2003, became sporadic after that, I think because of schooling. The last time she was there was the beginning of 2007. The front building was falling down, there were no horses there, it was fenced off. There was fencing there, the exterior all looked good. On Michigan Ave, well, it was caved in a little bit but it was still at an adequate level. The barn, fairly messy, hay and straw in the aisle way and wire and feed bags on the floor. Lean-tos were adequate. I don’t know if those were the lean-tos in the photographs, I don’t know if anybody showed those to her because the court does not find those adequate. But they could have from the January, 2007, got to the condition they were in March of 2007 or whenever the photographs were taken, but the court doubts that. In the big field there were feed bags, twine, two by fours, two by eights, wood, but no nails or sharp objects, did not see anything that could injure or kill. The horses looked good, body condition weight. There were giant barrels for feed and grain. No health, illness or weight issues. May not have seen all the horses. They were wintering outside, changing coats, very fuzzy. They do lose weight as she said, energy to keep warm. She did know Dr. Marteniuk was involved, but never talked with her. She last saw Mr. Henderson also I think the end of August, 2006, which is our bonfire. She never was at the farm again, did not ever see Mr. Henderson at the farm again. Never saw any torture, abuse, neglect. If she did, she’d have told Mr. Mercier if she did see anything. Her opinion is Mr. Mercier is very knowledgeable, excellent caretaker, would trust with her horses. Doesn’t recall if she saw the grulla mare, a few horses that she did not see, the ditch and the stream in January, the horses were in the paddock, fencing along the ditch, not trampled down. I think she may have been showed exhibit twelve which might have been the structures. Was that the structures, exhibit, photograph twelve? She did say they were in better shape in January. She had a hard time placing them on the farm, would have seen it from the front. And you may want to fix them, I recall that that was the structures.

Dr. Williams testified concerning the necropsy here. Severely lame, that was evident, should have been evident to anybody. His overall assessment very thin, muscle reduction. External examination, gross description, hair loss, lice infestation fairly significant. Hip right socket full loss, not born this way, whether it’s genetic he didn’t know. Cannot, could not tell if treated. I don’t know if he was asked how it would be treated or how you could tell if it was treated, but my notes indicate he could not tell if treated. Do not normally see this in a fifteen months colt, degenerative bone disease affects local bone strength. Does not know why the horse was put down. And he put that in the context of who made the decision as far as why they put the horse down.

And then we come to Mr. Chaltry. And I’ll be perfectly honest with you. I don’t know what the court can make of Mr. Chaltry’s testimony. I think after reviewing the testimony of Officer Chapin, looking at the notebook identified as exhibit thirty-three, Mr. Chaltry either committed perjury or has an exaggerated imagination about this events(sic) and maybe some others in his life. Certainly maybe that unfortunate illness with his wife, maybe that’s affecting on him, I don’t know. Maybe he struck up a real likeness to Mr. Mercier and Mr. Henderson, but when this officer is writing down in a notebook, Officer Chapin’s writing things down in a notebook as Mr. Chaltry and maybe his wife are telling her about, telling Officer Chapin about the horses, and then the sheet of paper is missing from the notebook and there’s a clear indentations in that sheet of paper, why would Mr. and Mrs. Chaltry, Miss Chaltry, Miss Ratcliff, I don’t know what name she goes by, take that sheet of paper unless there’s something suspicious there. I really don’t give any credence to Mr. Chaltry’s testimony whatsoever. Although there are some things that are obviously evident that other people had seen, so I don’t need to rely on Mr. Chaltry, but, for that, because there’s other credible witnesses that testified to the condition of the ranch, the condition of the horses, even though they may be in conflict with each other. He came on March twenty-first, contacted by Officer Luce previous to that I believe, drove to Jackson with his brother-in-law, made it clear that there was not a vet tech and they were not coming with a vet tech. And when he arrived he saw a truck stuck in the pasture, trailer with round bales stacked at the road, nasty looking, not feed, wouldn’t feed to his horses. Gone and return later the same day. Talked to Officer Wheaton, had all sorts of comments about her and how he felt he was treated there. And I don’t know what happened, I don’t know why we didn’t call Officer Luce, Director Luce at that time. He says he didn’t ask them to, I don’t know why Officer Wheaton didn’t do it, might have saved a lot of grief and time if both of them would have got to that approach. Goes home later, later there’s a telephone call from Luce, although I think Luce testified that she talked to his wife, asked to return and he did return with his spouse and stepdaughter later that day. Cannot remember the condition of the lean-tos. I thought that was very interesting in the context of their condition and his going around the farm. Because I think the lean-tos were still in the lousy condition that they were in when he would have got there. I could be mistaken on that. The barn needed new steel sheets, needed sheets nailed back on, definitely slobs. He took great pleasure in describing Mr. Henderson and Mr. Mercier, that they had clean up issues. There was a steak knife buried down in the aisle way by the gate, he stepped on it. There were syringes in the tack stall, did not know why they were there. There was also a couple on the floor. If the horses were fed and watered on a regular basis they would not look that good. He did see a dead horse in a trailer and he too never asked any questions. I don’t know, that’s, I’d have a million questions. Any normal person, reasonable person would have a million. Oh, dead horse, oh, okay, let’s go here. No, that doesn’t make any sense to me either, any more than Dr. Sray and Mr. Mercier’s comments about that either. He goes through explaining what work he did on the property. We get into a conflict here about what they were supposed to do and so forth. You’re just there to feed and water, you’re not here as a vet situation I think, there was no vet tech there, he’s adamant that they made it clear that they weren’t vet techs, but he certainly went around and poked these horses enough times to lead someone to believe he was a vet tech working under the authority of a vet. They marked the horses, there was a description--excuse me, I had that backwards. I think they were there to give medical attention, not to feed and water because they had people there to do that. Therefore he did that and certainly under the idea there as a vet tech, although he said that they made clear that they were not vet techs. He saw Buggy numbered one, Lucky number two, the grulla mare. He did describe the grulla mare as real thin and skinny. Lucky really did have a really sore back right leg. Number one I think as Officer Chapin testified, it was identified or marked with spray paint before she was able to tell him which horses to do, to spray paint. Easy, thin, old, bay mare, sorrel mare in the pasture. Another mare with a foal in the pasture that was stillborn. Apparently no questions about that one either. And maybe that’s not quite as unusual as the dead horse in the trailer. Ice in the barn, injured leg, cleaned the leg, lanced the wound. Would not have been surprised if there was wire in the leg. Matt had later, I think had said, because I don’t think he talked to him at that time, Mr. Mercier told him that there was a wire in the leg, had been coming to the farm and taking care of it until the vet arrived. And then that night he gets on the however to get a hold of Mr. Henderson who he talks to and does get information about the horse history and the treatment provided to the horses. And he then does take time to meet another time with Mr. Mercier and Henderson presumably to go over the case with him as to his observations and so forth. And in and of itself it’s probably an innocent meeting and the court doesn’t make too much of it. I don’t know where Mr. Mercier and Mr. Henderson were there relative to an attorney, but sometimes clients do some explorations as far as witnesses and try to gather that information before they have to pay attorney fees to do that. He thought they both owned the horses, Henderson had the most, Mr. Mercier one or two, that they leased the property and that there was, Mr. Henderson had a job with the county counseling and Mr. Mercier was the one that managed the farm. Slobs, people’s shoes and clothes everywhere, barn fell down or falling down, debris everywhere. There are parts of it that the court does find consistent with other persons, therefore he’s credible in that respect, but in some, in other areas not so much or at all.

Mr. Mercier testified how, his extensive experience with horses, experience, education, training, traveling to various programs to learn as much as he could, how he met Mr. Henderson, relationship developed to the opening of Turn Three in 1999 so they could have one place for all their horses. As far as records, Mr. Mercier got into a back and forth with Miss Lamp about this notebook that was supposed to be the records for whatever purpose but certainly for IRS purposes as well, very vague and elusive about describing that. That would strike the court as first of all it would have been here to show that I am in fact spending this money, Mr. Henderson’s money in the manner in which I’ve described, or I’d have been able to describe the notebook. Just what color it was, we couldn’t get out of it what was in it, he just continually skated away and so I think Miss Lamp just gave up. Understandably so. But they do get together in 1999, one place for all horses, twenty-five to thirty of them. Mr. Henderson begins buying better brood mares and two paint stallions. Mr. Henderson owns the most, Mr. Mercier very few. And their arrangement in the fall was is Mr. Mercier takes care of the farm, Mr. Henderson the checkbook. And he goes through his routine how many days, how many times a day, how many times a week in terms of chores, general chores, and then also in terms of securing round and square bales, the condition of the horses in the fall of 2006 and then I think some of the horses were secured by Mr. Henderson, all the horses looked fine, fat and shiny I think is, or at least Dee and Easy is how Mr. Mercier described them. Mr. Dungan then took him through, well, what was your plan in the winter of 2006 and 2007. Well, we bring all horses up near the barn because that’s what we do. Round bales, we de-worm, trim feet, try to fatten up, and that’s for obvious reasons. Separate out, different feedings, we want to avoid the pecking order. Do some cleanup. And we always winter them outside, the size of the herd and barns breed disease, and that strikes the court as why you do those things and sensible in the horse industry. December, January, horrible weather, different than what I think, I think it was Dr. Sray testified before, and what he described it as rain, farm was a slop pit, and then it got really cold and icy. His ice storm was in January-February. That’s inconsistent with Dr. Sray’s as I believe it was testified about it was February and March when we started to have the ice. And then we get into the unplugged electrical fence. At that particular point Mr. Mercier began to fade with credibility with the court. You have an ice storm in January-February, you lose power a couple of days. You lose fences. The electrical fence I guess is still going and darned if that thing’s not unplugged all the time, or a number of times. And I can’t figure out how it’s unplugged. My goodness. Oh, well. And therefore the horses can run around and I don’t have to do anything about fixing these fences and if they run around, who cares, because I can’t figure out why this electrical fence unplugs. Leading me to the conclusion clearly that Mr. Mercier is way over his head. Ice did catch the wire, a six foot wire around the leg and that again gets me to, if it was wrapped around the leg, and I don’t know what condition it was, the court doesn’t know what condition it was when Mr. Mercier sees this, but is it already embedded when he sees it? Is it not embedded so that I can take it off? I don’t know. But certainly it sounds like, confusing to the court, if not clearly neglect on Mr. Mercier’s part. The two stallions are consistently in the barn, could keep many horses in there comfortably. Dee and Easy were still in lots with other horses in March of 2007. Did bring Dee inside, blanket all of February, and perhaps consistent with the weather that developed at that time, however, after January which is Mr. Mead’s operable time, allows, that will allow Dee to feed more trying to keep the weight up, just couldn’t do it for whatever reason Dee couldn’t. Easy blanketed outside and I think not brought inside, there was not space for Easy at that time. The grulla mare described as Mr. Henderson’s baby, which is fine, and we all have special horses, I think cats, dogs, you know, I don’t say that in a derogatory way, I’m just repeating Mr. Mercier’s comments on it and I took that as a favorable description, grulla mare was getting beat up by the pecking order. Put in a barn stall, didn’t like it, apparently stressed out pretty good, separated from the herd and Lucy. Began to gas colic, gave medicine, paced the stall, threw self around, kicked at the food, and then gradually adjusted and began to eat. Apparently not terribly successful at that time based on the description that we’ve had of this grulla mare. Then we talk about the loose horses and again we get back to well, that darn fence keeps getting unplugged and I can’t figure out why, or can I fix it. Talks about the Davises who live across the street and on the drawing across the pool area that’s that circle down in the lower left corner. Only saw them on the weekends and couldn’t be as she described the times that we went there because otherwise they would be dead. And I think that’s true. Although I think Miss Davis is clear, they could have been there many times, and he is adamant with my responses that she couldn’t see our farm from the porch. Miss Davis said she could. The court finds Miss Davis more credible on that point. March fourteenth he’s there, does his chores and leaves. Got the dead horse in the driveway, found it on March thirteenth, towed it into the driveway, drug it up front to dispose, called Dr. Irving to figure out what to do and we never find out what Dr. Irving says to him as far as what to do. He says, Mr. Mercier says no autopsy was needed, there weren’t any signs to do that. He does not ask Dr. Sray to examine it. Dee and Moose were in with the yearlings a week or two before March fourteenth, thought he could handle that situation himself, he was just going to wait for spring and summer so they could still have a decent life. I guess the other alternative was euthanasia, I guess using his term. It just takes longer to notice a weight loss on a horse. He says no postings at the farm, never there. As the court has indicated before, I found it interesting that on the next day he shows up at Mr. Henderson’s house, can’t remember why he goes there, and does see the posting there on Mr. Henderson’s house, leading to contact with Officer Wheaton. Talks about in March of 2007, food and water everywhere. Fresh round bales in the pasture, hay’s in the barn, forty, fifty bales, water filled March fifteenth, that morning, three hundred gallon tanks that he fills once or twice a day. Animal Control looked at the wrong item, they looked at a feeder, not the water tank. And again, that gets me back to Mr. Feldkamp and Mr. Holt with those no receipts that are brought in to show these purchases. Maybe they were made, maybe that’s how Mr. Henderson wanted to present the situation to the IRS, or not present it to the IRS as the case may be. I need a receipt, I have to show this to the guy who’s got the bucks to explain to him why I’m spending this money or where it’s going so he can analyze, can I buy another horse or do I have to sell some horses. That just bothers the court a great deal. There was build up of the manure in the barn condition. And another interesting point is the Bobcat. We just can’t seem to get the Bobcat fixed to get the manure out of the barn. It’s been in the shop for two months. Context now we’re talking about is March. We can’t get the Bobcat fixed, just like we can’t figure out how the electrical fence keeps unplugging itself. Maybe one of the horses comes over and pulls it out. What are we talking about with Mr. Henderson? Jim, this dumb Bobcat, can’t get it fixed, can you go over to those people and get it fixed for me, I got to clean this horse stuff out of here. Continuing my, the court’s theory that Mr. Mercier was well over his head here. And why doesn’t he tell Mr. Henderson this. Because he’s anxiety prone. If I tell him everything he’s just going to what, get anxious, have an anxiety prone? Well, if he is, where would Mr. Henderson go to relieve the anxiety, to satisfy himself that the farm is either really bad or getting really bad, or not as bad a shape as I’m thinking it is because I’m anxiety prone, or Mr. Mercier’s doing okay or he’s really lousy? You’d go to the ranch. But Mr. Mercier doesn’t tell Mr. Henderson because he doesn’t want to get him anxious because he’s anxiety prone. Ice had the wire the beginning of March, found him out in the pasture cut pretty good, six feet of wire entangled, brought him into the barn, he cut the wire, examined, could not see any further wire. Which would lead again the court to the impression that if he’s got it circled around him, entangled, which I consider to be a circular process, around just I guess one leg and it’s in a circle, you probably try to find as you take a loop to try to get to the bottom of the loop where it starts maybe or somehow gets around there, or we don’t do that. Everything out as far as he could see, treated in the manner he described, just not getting better, the more he did, the worse he got. Increased swelling. Maybe there’s wire in there. So finally he calls March fifteenth or March sixteenth for a three o’clock appointment on March sixteenth. Again, the court’s already described the coincidence about that Mr. Mercier suddenly making this call on March fifteenth or sixteenth. Maybe there was a posting at the farm. But no call to Mr. Henderson because of his anxiety proneness. He does contact Officer Wheaton and just like Mr. Chaltry, she’s rude, she won’t answer my questions. He does agree to get Sray there the next day, calls and arranges that with Dr. Sray. Rarely use vets. I wonder if that’s because of money or Mr. Mercier’s sense that, well, I better take care of this because I can, doesn’t want Mr. Henderson to know what we’re spending the money on. The court doesn’t know. So they meet there, they get there before Officer Wheaton. We got water, we got hay. The court can infer that Mr. Mercier got out there plenty early to get some hay and water going. Sray does look at the wire on Ice. They go into the paddock lot, Moose and Easy had been moved there. Sray first says, well, if it was my horse I’d put it down, talking about Moose. That’s an interesting comment by Dr. Sray about this horse. It must be extremely emaciated, in the condition of one or less I think as one of the previous witnesses have testified. Oh, no, no, that’s not an old horse. Dr. Sray didn’t touch it in any way. That’s not an old horse Mr. Mercier says, well, okay, let’s wait thirty, sixty, ninety days, weather will get good, should be okay. Elvis is the pelvic horse. March fifteenth, noticed a little bit of a limp. I don’t think we had a description as far as Officer Wheaton and how she described the limp I think the time that B.J. was there when she saw it in the headlights, but certainly the limp’s getting worse by that point from my interpretation of Officer Wheaton’s testimony, certainly by what the doctors had said later. He described his regular routine the seventeenth, eighteenth, nineteenth and twentieth in the a.m. But then when he returns he’s told at that point by Animal Control he’s not allowed any longer on the farm. He disagrees with the doctor’s report as far as Easy, Dee and Moose as ones, he disagrees with that. He thinks Easy’s a two, Dee’s a two, but Moose is still a one, so I don’t think there’s any great disagreement there in a meaningful way. The yearlings he does somewhat agree as far as their description as two and three, again below the ideal of four and five. He does say the lice issue was worse in 2007. Large herds, they get it. I think that’s a reasonable explanation as far as how, that they do get it, they’re bumping into each other apparently, they’re grabbing for hay all the time. They’ve probably got their heads stuck in the water bin, things jumping around, that’s a reasonable explanation that big large herds would get it. And certainly put in, locked up in a barn is reasonable to the court as well that you just, just like you get enclosed in the winter, human beings enclosed in the winter, shut all the windows, seal everything up, and lo and behold we got flu and pneumonia in no time as we go in and out of the house. Maybe it’s the used blankets that Mr. Mercier bought that might have caused that coming from some other horse some later time, or earlier time and then he puts them on this horses, maybe that started the process, don’t know. I thought it was interesting that you’re buying used blankets for Mr. Henderson’s expensive horses, but maybe he didn’t tell Mr. Henderson he was buying used blankets for the expensive horses. Does treat the horses in the spring, de-wormed and powdered. Usually, excuse me, usually treats them in the spring, de-worms and powders. Not done by March twentieth of 2007 because of the weather. Not see too much of it there, we usually do that at the end of March. That’s a reasonable explanation as well. He was aware of the loose horses on Michigan Avenue and did repair the fences. Well, apparently not very well because up until March fifteenth they’re, up to March thirteenth they were still, some of which, not all of them, were running loose. And why they were getting down to that fence in the first place on East Michigan Avenue, we may go back to I guess the mysterious unplugging of the fence. The water well had an electrical pump. I don’t know what effect the power outage had on there, the horses, it was out for two days. The horses didn’t have water for two days all during the time the electrical fence getting unplugged? Did that affect the electrical pump? Probably not. It’s a different operation I suspect, that, just a curiosity the court heard, and I certainly was interested in the lack of testimony by Mr. Mercier about the condition of the structures and why they looked the way they did.

Mr. Henderson testified, the court’s very impressed with Mr. Henderson, his qualifications educationally, certifications, the work he does. As I think if I understand the way he described it, it’s got to be a tough job for one thing, the type of individuals that you have to deal with on both sides of the formula, having been there on both sides of the formula from time to time. And certainly I think that Washtenaw County or the City of Ann Arbor have a good program. The court happens to be familiar with that through the, if I can remember her last name, Libby, yes, and talked with her from time to time about the program. Not you, I never knew you from a hill of beans before, never mentioned any names, but generally the program as it was starting up, and Jackson is taking a look at the program as well. I don’t know, maybe even came here and talked with some of the agents or not, but I’m certainly impressed with you both personally and professionally in what you do. I have some concerns about herd management skills that you have in terms of the financial side and taking care of them as well, but you begged off from that anyway, recognizing that that’s not your forte, that’s not your skill. Plus you had serious obligations in what you do, not only in Ann Arbor, but throughout the country, so great respect for you in terms of that. You were out of town, you went through your schedule, and I don’t want to talk to you personally, but Mr. Henderson went through his schedule in quite detail, had a notebook with him and went over, I was out of town here, I was out of town there, probably wondered what city he was in next, when he got there, where am I now. Spent a great deal of time sounds like instructing, putting together programs perhaps for other people throughout the country. But I found that there was not a time in January of 2007 about which you talked that you were ever out of town. That you were working clearly, maybe had to catch up, sometimes you got to catch a breath. The judges say time to catch a breath, and that’s certainly understandable. Background in horses, all your life, all his life. Did some chores and the feeding, maybe that led you to believe, Mr. Henderson to believe that it wasn’t my forte, but your educational career took off in a different direction with your California and your special certifications and so forth. At some point getting together with Mr. Mercier for a common con—common goal or common enjoyment of the horse trade, did get Dee from, I think inherited from a grandfather if I recall Mr. Henderson’s testimony or great grandfather, great uncle, a relative. Boarded where Mr. Mercier boarded his horse, got to know each other, said hey, let’s, I think before the ranch on Mr. Henderson’s property, Mr. Mercier boarded there or some property Mr. Henderson had access to, and Mr. Mercier will do the chores and take care of the horses and then started breeding for barrel and track racing, Mercier traveled, do a lot of research to bring the two of you gentlemen up to snuff on that and then we begin buying more horses to where we then got to where we need our own place. I think someone was sharing or changing the situation for Mr. Henderson and a decision was made for the Turn Three Ranch. Mr. Mercier was left to work out the lease. The court doesn’t find any problem with Mr. Mercier doing that, you’re still there so whoever the landlord is must be satisfied, you must be paying him something. But we consolidate our horses and started with anywhere from sixteen to thirty horses, started buying some very expensive breeding mares cheap because they were older as Mr. Henderson described and kind of like a very expensive original car, once you drive it off the lot it’s cheaper. As the horses get older I’m sure that while they may still be effective for purposes of breeding, they may not be worth as much for purchase price. And at one time securing the leading money winning stud during this process of purchasing as well. I’m not sure, I think that horse if I’m not mistaken is kept somewhere other than the ranch Three. Arrangements, I pay the bills, Mr. Mercier does all the chores, breeds all the mares, worked with the vets, he knows medicine, nutrition, diseases, so that makes sense. Mr. Henderson’s comfortable with Mr. Mercier. We had a checking account, ran out of checks, didn’t get any more. That strikes me as a little unusual that you wouldn’t get more checks, simply for accounting purposes, but maybe we didn’t want more checks for accounting purposes. We had cash at the house, at least eight hundred, sometimes five thousand, perhaps after the sale of a horse or something like that, the pile grew and the bankroll in the drawer was built u