Friday March 8, 2013

BENNINGTON -- The attorney for a former Bennington County Sheriff’s Deputy accused of shooting a neighbor’s pit bull has filed a motion asking a judge to dismiss the case on the grounds the dog was attacking the deputy’s chickens and a smaller dog when it was shot, which, according to state statutes, would make the animal cruelty charge he is facing inapplicable.

Donald Loveland, 51, of King’s Way in Pownal, pleaded not guilty in November to a misdemeanor count of cruelty to animals for allegedly shooting Maxx the pit bull, owned by his neighbor Amber Kilbride. Kilbride, and her step-mother Melissa Kilbride, told police that on Aug. 26 Maxx got loose and not long afterward they heard two gunshots. The Kilbrides told police Loveland admitted to shooting at a dog but said he was not sure if he hit it. Some days later a pit bull’s corpse was found nearby, and investigators determined it died of a gunshot wound.

Loveland was put on leave by the department as per procedure but then resigned.

His attorney, William D. Wright, filed the motion to dismiss on Feb. 1. According to the motion, Loveland raises chickens on his property and on Aug. 19 Loveland returned home from work to find two roosters missing from their pen and rooster feathers scattered about. Later that week he found a third rooster dead, and so on Aug. 25 purchased more chickens for the pen.


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The next day he was with two friends, a male and a female, eating dinner outside on the deck at his home, when a pit bull came on to the property. Wright wrote that his female friend had her small poodle/shih tzu mix with her and it had previously been chased by what they believed was the same pit bull.

According to Wright, the pit bull went after the smaller dog which was picked up by its owner while the male friend tried to distract the pit bull. With the smaller dog inside, the put bull went towards the chickens, which became agitated. Loveland then came outside with a .22 handgun and fired at the pit bull but was not sure if he hit it. The dog did not appear to have a collar and after this incident there was no further loss of chickens.

Wright argues that the killing of the dog was permitted under 20 VSA 3545 (b) because it was "reasonably necessary to prevent injury to the animal or fowl which is the subject of the attack." He said this trumps the animal cruelty law, and cited State v. Sylvester, a case in which the Vermont Supreme Court overturned and entered a not guilty finding for a farmer convicted of cruelty after he shot one of two dogs he found attacking his chickens.

Wright’s motion was filed pursuant to "V.R.Cr.P. 12 (d)(1)" which requires the state to present enough evidence initially that would convince a jury of the defendant’s guilt, provided the evidence is taken in a light most favorable to the state and excluding modifying evidence.

The state filed a motion in opposition to the dismissal on March 1. In it, Deputy State’s Attorney Jennifer Barrett argued that the state has enough evidence to prove beyond a reasonable doubt that Loveland killed Kilbride’s dog when he had no right to do so, excluding modifying evidence.

She also argues that the law Wright is citing does not in fact make the animal cruelty law inapplicable.

"The statute in Title 20 is a civil provision that has not been amended since 1977. The legislature has amended the animal cruelty statute numerous times since 1977 and as recently as 2003. If the legislature intended 20 V.S.A 3525 to be an affirmative defense, it would have been written into 13 V.S.A 352(b), the affirmative defenses for animal cruelty. The court should not apply 20 V.S.A 3525 to the criminal case," Barrett wrote.

She added that Wright’s motion makes "uncorroborated factual assertions that are not supported by sworn affidavits or sworn testimony," and she asks the court to deny the motion.

A decision has not been issued on Wright’s motion, nor has a hearing been scheduled.

Contact Keith Whitcomb Jr. at kwhitcomb@benningtonbanner.com or follow him on Twitter @KWhitcombjr.