The Virginia Court of Appeals has upheld the rulings of the Rockbridge County Circuit Court in the Natural Bridge Zoo case.
The ruling, which was published by the court on Tuesday, went through each argument presented by Aaron Cook, the attorney for Karl and Debbie Mogensen, for overturning the outcome of the trial held in March 2024. Judge Lisa Lorish wrote the court's opinion on the case.
Cook's first argument was that the Mogensens were exempt from the forfeiture of the animals under Virginia code section 3.2-6503, due to the fact that the zoo is a licensed exhibitor under the regulation of the United States Department of Agriculture. The seizure statute, Cook argued, does not apply to exhibitors licensed by the USDA, as noted in the definition of “adequate care” listed in Virginia code section 3.2-6500.
The Court of Appeals disagreed with his argument, and in her opinion Lorish wrote that the statue protects “any animal” that is poorly treated or abandoned and “focused on providing immediate and emergency care for those animals, without regard to the owner's classification.” She further wrote that the statute allows for the seizure of any animal “that has been cruelly treated without regard for whether that cruel treatment violated any other provisions of the chapter.”
Lorish also noted that the statute doesn't just apply to exhibitors, but also to owners, which the code section defines as an individual who “has a right of property to an animal”; “has an animal in his care”; “keeps or harbors an animal”; or “acts as a custodian of an animal.”
The Mogensens, Lorish said, “are clearly owners under this definition. Thus, it is irrelevant whether the Mogensens do or do not qualify as exhibitors. As owners, they could provide inadequate care under [the statute].”
Cook's second argument was that the trial court had erred by not allowing an evidentiary hearing on a motion to suppress evidence that was filed by the Mogensens' attorneys prior to the trial, arguing that the seizure of evidence from the zoo in December 2023 had violated the Mogensens' Fourth Amendment rights.
Lorish noted in her opinion that the appellate court has held in previous cases that the seizure of animals is a civil matter, not a criminal one, and is therefore not subject to the same standards regarding seizure of evidence.
“Ultimately, the animal forfeiture statute is not about punishing the owner of an animal,” she wrote. “Rather, it is aimed at protecting the welfare of animals by removing them from settings in which their safety is imperiled … As a matter of law, the remedy the Mogensens sought does not apply, and no amount of evidence could change that conclusion.”
The Court of Appeals also ruled that the circuit court did not err in prohibiting Gretchen Mogensen from testifying after her name was unintentionally left off of the list of witnesses that the defense provided during discovery. The Mogensens' attorneys sent an email to the attorney general’s office at 2 a.m. on the last day of the trial noting their intent to call Gretchen Mogensen as a witness. Judge Christopher Russell ruled that, due to her name not being included in the witness list – which he did acknowledge was accidental – and the defense not mentioning her name during the jury selection process as a potential witness, that Gretchen Mogensen’s testimony would be prejudicial to the state's case. Lorish and the other appellate court judges who heard the case agreed and upheld Russell's ruling.
Finally, Cook argued that there was insufficient evidence to sustain the jury's finding of cruelty or inadequate care for the 71 animals it awarded to the state.
Lorish noted that, even though the case was civil and not criminal, the burden of proof “beyond a reasonable doubt” still applied. After reviewing the evidence presented for each type of animal that was awarded to the state, the court upheld the verdicts of the jury. While there was more evidence of cruel treatment for some animals than for others, Lorish said, there was “at least some direct evidence of inadequate care for each animal.” She went on to say that “the overall lack of care for so many animals at the zoo provides additional evidence” that the animals for which the burden of proof for cruelty was not met “were also ill-treated.”
“The general animal care method and plan at the Zoo was clearly lacking, and the jury was entitled to count that as relevant evidence supporting the cruel treatment of each individual animal,” Lorish wrote. “The jury carefully considered each animal, concluding that many had not been cruelly treated. As for the 71 animals that the jury found had been cruelly treated, we find there is sufficient evidentiary support to the determination of animal cruelty, and so we affirm.”
