The Wyoming Supreme Court has upheld the prison sentence of a Uinta County man convicted of aggravated animal cruelty for shooting another man’s horse in the gut.
A jury trial convicted Justin Berry, 40, on one count of aggravated cruelty to animals for shooting a mare named Less Stress in the gut in June 2020. She died with two bullets lodged in her intestines.
Kay Dunford raises thoroughbreds and quarter horses to race in Gillette, Rock Springs and Evanston, according to a Friday ruling by the Wyoming Supreme Court.
Dunford put four of his broodmares and their young foals that summer on Wasatch Road in Uinta County on property he sub-leases from a woman who, in turn, leases the land from the Union Pacific Railroad.
Less Stress was acting oddly, so Dunford moved her to a closer pasture to keep an eye on her, and her foal, and to give her antibiotics.
When Dunford went to check on the other mares he found one of them, Red River Romance, dead on the other side of the fence. He thought she’d been struck by lightning, but Dunford’s veterinarian later discovered that she’d been shot in the lung and died within about 30 minutes of the gunshot, her chest cavity full of blood.
Dunford and the vet called law enforcement. While they waited, another mare, Little Fibber, also bled from a bullet wound in her hip, they noticed.
Dunford went back to check on Less Stress. She was running a high fever and losing weight.
Less Stress died four days later, July 5, 2020.
When the vet opened her abdomen during a necropsy he found infection and inflammation, as well as two bullets lodged at the jointure of her small and large intestines.
Her digestive system had shut down, the court’s ruling says.
The vet gave the bullets to law enforcement. Those two and Red River’s lung slug all appeared to be .22-caliber bullets.
Shouting At The Stucco House
Deputies were patrolling Wasatch Road and encountered one of Dunford’s employees feeding his horses. The employee said he was fixing a fence on the property in early May when a man came out of a stucco house on Wasatch Road and started yelling and cursing at him.
After the yelling, the employee heard what sounded like a gunshot coming from the direction of the stucco house.
The employee didn’t report it at the time because he didn’t think anyone would believe him.
The deputies surveyed the area and found the stucco house. Justin Berry lived in it with his wife and young daughter.
Berry’s wife told deputies at the time they’d had issues with neighbors who leased the property behind their home, and that Berry was angry at a rumor that there were about to be 150 horses on the property. Berry had “exchanged words” with Dunford’s employee about a month earlier, Berry’s wife had said.
Super Quiet
A deputy got a search warrant for Berry’s home. He and four other deputies searched and found Berry home with his young daughter. Berry’s friend was also there, and had been a frequent visitor, the ruling says.
Berry’s wife arrived shortly after the search happened.
Deputies found a .22-caliber Ruger rifle in Berry’s pantry, containing “Super Quiet” rounds consistent with those recovered from the horses. They also found three spent shell casings on Berry’s deck.
They sent the bullets, the casings, and four guns from the house – including the rifle – to the Wyoming State Crime Lab.
Lab personnel determined the Ruger rifle had fired the two bullets recovered from Less Stress, and all three spent shell casings. But they couldn’t match the bullet from Red River Romance’s lung to the gun.
Wives Tell No Tales
The Uinta County Attorney’s Office charged Berry in March 2021, with three counts of aggravated cruelty to animals — one for each horse.
But when it came time for Berry’s trial, defense counsel and the prosecutor discussed whether Berry’s wife would be testifying, or whether she’d invoke her fifth amendment right and not testify against her spouse.
District Court Judge Joseph Bluemel planned to let the wife invoke her right out of the jury’s presence, rather than in front of the jury.
Berry’s attorney in his opening statement told the jury there were three other suspects who had access to the culprit rifle: Berry’s wife, his daughter, and his friend.
Also, Berry’s wife had bought the rifle, the lawyer said.
The prosecutor pivoted, saying there was “some merit” to having Berry’s wife invoke her right in front of the jury, since Berry had raised the idea of her using the gun and the jury may wonder why she wasn’t in the case.
Berry agreed to this at the time.
He later fought this gesture in his appeal to the state Supreme Court, saying it disadvantaged him to have his wife announce her intention to remain silent in front of the jury.
The high court disagreed, saying because he didn’t oppose the gesture at trial, he couldn’t dispute it on appeal.
Who’s This Witness?
The prosecutor also called Ms. Beaslin, the lessee from whom Dunford sub-leased the horses’ domain, to establish that the horses were rightfully on the land.
Berry disputed this in his appeal, saying it wasn’t right to invite a witness whom the parties didn’t plan to invite before the trial.
Again, Berry did not object to Beaslins’ testimony at the time, and didn’t prove to the high court that the court couldn’t allow her testimony, says the ruling.
The surprise evidence also wasn’t a key part of an essential element of the crime.
Mamas And Their Babies
Berry contested the prosecutor’s closing statement, in which the prosecutor detailed the horrific way in which Red River Romance died.
“(She) ran into that fence and went over the top, and died when her heart finally gave out from the loss of blood,” said the prosecutor. “It would be a horrible way to die… Your stomach is not moving. You’re not digesting food. You’re just getting sicker and sicker.”
Berry said the prosecutor used charged language to inflame the jury. She’d also used language about the “mothers” and their “beautiful babies,” rather than only calling them mares and foals.
She was “humanizing the horses” to secure a verdict, Berry had argued.
The high court agreed that the charged language was improper, but it wasn’t enough to get Berry a new trial because Berry didn’t prove that the language prejudiced him.
The jury’s decision only to convict Berry for one horse’s death showed their ability to stick to the facts, the high court ruled.
“The jury acquitted Mr. Berry of the other two counts,” says the ruling. “This shows the jury was not swayed by the prosecutor’s attempts to inflame its passions, and the jury based its decisions on evidence, not emotion.”
Vouching
Berry in his appeal accused the prosecutor of “vouching” for the Uinta County Sheriff’s Office by saying the deputies worked as a team and vouching for a DNA expert by calling her “as high of an expert as you can go.”
Prosecutors can’t impose their opinions and expertise onto a jury as if the prosecutor has more insight as a fact-finder than the jurors do.
But these statements weren’t vouching, the high court determined. They were reasonable statements and inferences.
Self-Incrimination
Lastly, Berry told the high court that Bluemel ordering him to participate in a pre-sentence investigation after his arraignment, as a condition of his bond, violated his right against self-incrimination.
The state Supreme Court disagreed a final time. Berry’s pre-sentence report showed that he didn’t give any incriminating statements. It focused instead on substance abuse evaluation, the ruling says.
Berry is slated to be released Sept. 29 and is currently at the Cheyenne Transitional Center, according to the Wyoming Department of Corrections website.
Clair McFarland can be reached at clair@cowboystatedaily.com.
