Pet-Abuse.Com - Animal Abuse Case Details: 56 mares and their foals seized

56 mares and their foals seized
Sterling, CO (US)

Incident Date: Monday, May 23, 2005
County: Logan
Local Map: available
Disposition: Convicted
Charges: Misdemeanor
Case Images: 2 files available

Abusers/Suspects:
» Donald Smith - Dismissed
» Cheryl Smith

Case Updates: 4 update(s) available

Case ID: 4720

Classification: Neglect / Abandonment

Animal: horse

View more cases in CO (US)

At least 56 mares and their foals seized north of Sterling could soon be auctioned, averting a worse fate allowed by an animal neglect law, the Logan County sheriff's office said.

Today is the statutory deadline for payment of $6,873 by their owners to halt the horses' possible slaughter, according to court records.

Two custodians are named in a May 23 animal cruelty complaint that led to their confiscation by state and county agencies. The impoundment order by the state's Bureau of Animal Protection, which specified a bond due for their care, listed Donald Smith, a Sterling defense attorney, and Cheryl Smith, as the owners.

Public outcry over the animals' welfare, which remains in dispute, began swelling after a May 13 Journal-Advocate article explored a "notice of warning" that the state agency issued to Smith last November. The notice involved about 130 horses.

Six months ago, the state bureau ordered a remedial health care plan for the herd. It instructed Smith to have a veterinarian check a sore eye on one mare, to feed them adequately, and also to "supply proof" that he had de-wormed them by December, according to a copy of the document that the newspaper requested weeks ago from Colorado Department of Agriculture.

However, no final evidence that all corrections were carried out was released, and Linh Truong of the state agriculture department conceded the bureau's warning lacked teeth, even though it threatened farther action for non-compliance.

"The proof of de-worming wasn't provided by the owner," she said a few weeks ago, despite the agency reporting Smith had already corrected all the problems. Soon, wider public attention eventually rippled back to places like the sheriff's office.

Lt. Jim Coody noted there was "a lot of interest" as well as public fears that the horses might be killed.

"These horses are not going to be destroyed," he said, discounting a final option afforded by the same law that permitted the herd's confiscation.

The bonding order calculated a bill of $163.64 for each animal, which Coody said covers items like feed, veterinarian bills and housing.

Court personnel said the $6,800 bond had not been paid for the horses' release from a Sterling livestock yard.

Late that afternoon, Smith could not be reached at his law office about the alleged abuse that his supporters dismissed as driven by law enforcement "politics."

Sheriff's deputies, joined by a state brand inspector, executed a search warrant on May 23 and hauled away the mares and their 13 foals. They were eventually moved to Sterling Livestock Commission Co. Inc. The sheriff's office said the state veterinarian's office also participated in the seizure.

The livestock company said the herd has since grown because of new births. A co-owner there said she believed the bond deadline was Wednesday evening, and referred questions to a state brand inspector who did not reply to a message seeking comment.

The police action led to summons for both Smiths, according to court files. The attorney, representing himself, made his first appearance this Tuesday in county court, and a pre-trial date was set for June 28.

The livestock company said it anticipated a sale date soon for the herd, which is eating 15 to 20 bales per day.

"They're eating up a lot of hay. They were hungry when they got here," said one business co-owner, who didn't give her name. She noted there have been many callers and visitors asking about the herd.

Horse fancier Hannah McKay, 15, said many residents are watching what happens, as well as a Rocky Mountain horse rescue group. But a Web site for one such group said the site was under construction, and it couldn't be checked to see if it has any adoption plans.

The sale barn acknowledged that bidders also could include slaughter houses.

The Sterling youngster recalled seeing Smith's animals the day of the roundup.

"They were not in good shape at all," said the young rodeo barrel racer. "I've grown up around that stuff."
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Prosecutor's Contact Info:
Ginger Geissinger, Deputy Prosecutor
Office of the District Attorney, 13th Judicial District
110 N. Riverview Rd., Rm. 105
Sterling, CO 80751

Case Updates

A Logan County jury in December 2005 found Cheryl Smith guilty of misdemeanor animal cruelty, a conviction that was recently overturned by District Court.

In May 2005, state officials confiscated about 60 horses that were deemed abused and malnourished from Smith�s possession.

Almost exactly one month after a jury convicted her of the misdemeanor charge, Smith, through her attorney, immediately filed an appeal arguing that the actions of the trial court judge in conferring with jurors ex parte or without the presence of counsel is considered a violation of a defendant�s constitutional right to counsel.

District Court agreed.

On May 23, the 60-year-old Smith will again have the opportunity to place her fate in the hands of a jury as the 2005 case is set for a retrial.

In the reversal decision, District Court Judge Kevin Hoyer stated that any discussion by the judge and jurors on legal or factual issues, in this case, constitutes a critical stage of the trial. District Court ruled that conducting an ex parte � without the presence of attorneys � conference with the jury, during its deliberations, violates the defendant�s constitutional right to an attorney and that absence of attorneys may have impaired Smith�s right to a fair trial.

On Tuesday, Smith�s defense attorney Brian Thomas filed a motion to recuse County Court Judge Robert Smith � who presided over the 2005 case � from presiding over the case being retried. A court decision on the matter is pending.

With the conviction being tossed, prosecutors have no basis for the felony charges filed against Smith in July 2006 when both local and state authorities acting on a tip seized eight horses � including one colt � from a ranch in the 17000 block of County Road 41.

For the second time in a span of one year, authorities said they found horses being kept questionable conditions.

Officials from the Colorado Department of Agriculture Animal Protection Office and State Veterinarian�s Office said that the horses seized in July 2006 had visible signs of abuse and malnourishment.

One of the horses died shortly after the seizure.

The 2006 felony charges were dropped in District Court and refiled as misdemeanor charges in County Court earlier this year. Smith is due back in court on these charges on March 13. A trial has not been set for this case.

Court documents showed that Smith would be represented by the Public Defender�s Office on the eight misdemeanor animal cruelty charges.

Thomas, a private attorney would represent Smith in the re-trial of the 2005 case. He could not be reached for comment as of 4 p.m. Tuesday.

More than likely, prosecutors said, Smith�s eight counts of animal cruelty would stay in County Court as misdemeanor charges even if she was to be found guilty on the re-trial.

All the horses seized back in July were auctioned off after Smith failed to post the $3,100 bond for the horses.

The 60 or so horses authorities seized from Smith in 2005 were put up for adoption after the court placed an injunction on selling the horses. In this case, Smith also failed to post bond on the horses.

Source: Journal-Advocate - March 7, 2007
Update posted on Mar 12, 2007 - 4:01AM

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On July 26, 2006, 7 allegedly malnourished horses and one colt were seized from Smith. For more information on that case, click here.

Source: Denver Post - July 26, 2006
Update posted on Jul 26, 2006 - 7:46PM

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Several dozen horses were given new homes Saturday. A horse adoption placed all but two of the nearly 60 horses belonging to Logan County residents Don and Cheryl Smith.

The court-ordered adoption caught the interest of many area residents, as well as some people from a little farther away.

"A case this big is very atypical," said Scot Dutcher, chief of the bureau of animal protection with the Colorado Department of Agriculture. The horses were scheduled to go to auction several weeks ago, but Smith,whose horses were removed following charges of animal neglect, received a court injunction preventing the sale. The horses were placed for adoption instead.

"The Smiths had several opportunities to prevent disposition by paying a bond for the horses," Dutcher said.

Each person "adopting" one of the horses paid an "adoption fee" of $259.58. Dutcher explained that fee was arrived upon by dividing up the more than $6,000 owed to the Sterling Livestock Commission for the care of the horses over the 30-day period they were in their care. Horse adopters also had to sign an agreement stating they were not buying on behalf of slaughterhouses.

The horses were divided up into small pens at the livestock commission Saturday, with about three horses in a pen. Each horse had a number attached to their rump. A small pail with the same number on it sat in front of every pen. Those wishing to adopt a specific horse placed their name in the bucket. About two hours later, a drawing determined who would take each horse.

The horses included about 15 foals, one stud and 43 mares. But the people at the event were a bit more varied.

The age of those at the adoption ranged as much as their reasons for being there. There was a father and mother seeking a horse for their small children and a teenager trying to convince her grandmother to let her adopt a horse and keep it at her place.

There were members of a horse rescue mission, a television photographer from a Denver-based news agency and a plainclothes-garbed Sheriff Bob Bollish, who explained he came to the adoption to "watch from a distance" and to calm down any one upset about the adoption.

Many of the people wandering the stalls and looking at the horses said they came out of curiosity, not because they wanted to adopt. James Cavey brought his family to the event on the request of his wife. "We love horses," Cavey said. "We just came out to see them, see what kind of shape they were in."

Cory Burtard looked over the condition of the horses he was interested in while his children, six and seven-year old Lane and Lacy petted one of the foals. Burtard said his kids were nearing 4-H age and would need a horse soon.

"(I'm here) just to try and get a horse for the kids and try to give a horse a good home," Burtard said.

"I want a foal," Lane told his dad. Burtard, who grew up around horses, said he was looking at some of the younger horses as they would be "easier to rebound." The Aguiniga family came from Aurora to adopt a horse to keep on their grandmother's property, on land located between Sterling and Akron. Ten-year-old Angel and 12-year old Kyle explained their strategy to win the drawing.

"My sister and I put our parents' name in (the drawing bucket)," Kyle said. "It only had two names in it. We figured out people only want the ones with the colts, so we figured out we could adopt it and give it a good home."

At just after 11 a.m., Dutcher called an end to the viewing. Before beginning the lottery, Dutcher issued a warning about a couple of "thin" horses in one of the pens that might have trouble traveling.

"I don't want to adopt them to someone who is going to travel far," Dutcher said.

Together with Sterling Livestock Commission employee Jason Santomaso, Dutcher led the crowd of people through the narrow aisle from pen to pen. They stopped to pick up each bucket and dumped the numbers into a drawing bucket, shaking it before Lane and Lacy Burtard rotated picking a name from each.

The buckets of some horses were full. Other horses drew less interest; only two or three pieces of paper lay in their buckets. The buckets for two horses were completely empty. Kellie Givs of the Castle Rock-based horse rescue mission The Epona Project said her group was willing to take those horses, as well as the two other horses the group was awarded through the lottery process.

Some walked away Saturday a bit disappointed their names hadn't been called for the horses they wanted. Others left a bit happier. Both Lane and Lacy Burtard's names were called, one each for a mother and her foal. "You should see the smile on this kid's face," Ducher announced after Lane's name was drawn.

The Aguinigas also came out lucky. Their new horses will be joined those grandmother Karen VanWart obtained in the drawing and will live on a farm with "lots of land," VanWart said.

Source: Fort Morgan Times - July 5, 2005
Update posted on Jul 6, 2005 - 5:17PM

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The government's case against a Sterling horse breeder suffered a second, albeit minor setback Monday when a judge tossed out a Logan County sheriff's office summons for animal cruelty and ordered a new complaint for court review.
One lawyer deemed the delay a legal technicality, temporarily favoring defendant BFD Land and Livestock. The company had sought a broader dismissal of the misdemeanor charges.

They involve Cheryl and spouse Donald Smith, 71, a local attorney, and about 60 of their horses that state and county agencies confiscated May 23.

Much is at stake on both sides - personal and business fortunes, and reputations. More recently, public confidence in animal welfare laws also has entered the equation.

For five weeks now, the horses' fate has been in legal limbo as their owners have fought the government in both county and district court to keep three decades of their prize breeding stock.

The sheriff's office, along with state brand inspectors and Bureau of Animal Protection agents, had executed a search warrant on the outskirts of Sterling and seized mostly mares and foals on allegations of mistreatment and neglect.

Monday's action added yet another layer of complexity to the legal wrangling between the company and government agencies, which previously included a deputy state Attorney General that represented the Colorado Department of Agriculture.

Last Monday, a Logan County district court judge denied the sheriff's office's plans to auction the herd, in part to cover impoundment costs. Instead, the court permitted other options like adopting the animals.

This week, animal rights activists started pointed accusing fingers at the horse owners.

On Monday, however, the owners won a mixed victory.

After hearing arguments on both sides for and against several defense motions, Logan County Judge Robert Smith partly sided with the Smiths. He ordered the government to submit its own summons to the horse owners, but reserved ruling on a broader defense request to throw out the previous misdemeanor charges.

Last month's animal neglect summons were issued by sheriff's deputies to both Smiths. Local defense lawyer Charles Sandhouse has been leading the attack in both district and county courts.

The defense, which in part cited civil procedure rules, maintained the court should have issued the tickets and not the sheriff's office, and therefore the complaints should be dropped.

Judge Smith agreed with half of that contention, that the summons properly lay in the court's hands.

"I'm going to direct the people to prepare a summons for the court to issue," the judge told lawyers on both sides. "And then we can raise the motion to dismiss at a later (time)."

Monday's docket slated three similar cases involving the company and it's president. Judge Smith set back a ruling on a defense bid to modify a restraining order against the defendants to July 11. The precise terms were not known for modifying what was called a stay-away order that prohibits the Smiths from approaching Sterling Livestock Commission Co., where the animals have been kept since their confiscation.

In a parallel development Monday, sheriff's deputy Jim Coody announced that July 2 has been set for adopting the herd.

Since the joint agency roundup collected 42 mares and 13 foals, the herd's size has increased with new births. The impoundment notice by the agriculture department specified a $6,870 bond that was intended to cover the herd's feed and care bill.

Source: Journal-Advocate - June 28, 2005
Update posted on Jun 28, 2005 - 5:15PM

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56 mares and their foals seizedSterling, CO (US)

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56 mares and their foals seized
Sterling, CO (US)