Appeal from the District Court, Third Judicial District, Kenai, Sharon A.S. Illsley, Judge. Trial Court No. 3KN-11-48 CR
David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Samuel D. Scott, Assistant District Attorney, Kenai, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard, Judge.
Robin Lee Sickel and her romantic partner, Jeff Waldroupe, owned three horses. They kept these horses on land owned by Waldroupe's father. In mid-December 2010, these horses were found to be starving and without shelter. The only food and water available to them was frozen solid. One of the horses was more than 200 lbs underweight; it had collapsed and had lain there so long that its head and the side of its body were frozen to the ground. The horse had to be euthanized.
Sickel was convicted of cruelty to animals under AS 11.61.140(a). This statute declares that it is a crime if a person, "with criminal negligence[, ] fails to care for an animal" and this failure to provide care leads to the animal's death or causes the animal severe physical pain or prolonged suffering. AS 11.61.140(a)(2).
Sickel now appeals her conviction. She points out that, as a legal matter, a person who fails to prevent a harm does not act "with criminal negligence" unless the person has an applicable duty of care - a legal duty to try to prevent the specified harm. 
The statute at issue in this case, AS 11.61.140(a), does not define which persons have a duty to care for particular animals. The statute simply declares that any person who violates this duty (acting with at least criminal negligence) is guilty of a crime if their breach of duty leads to the animal's death or causes the animal severe physical pain or prolonged suffering. Because the statute fails to define who bears a duty to care for animals, Sickel argues that the statute is unconstitutionally vague and that her conviction for cruelty to animals is therefore unlawful.
It is true that the cruelty to animals statute fails to specify which persons have a duty to care for particular animals. But we are authorized to look to the common law to remedy this omission. As we explain in this opinion, we hold that the statute applies to all persons who have undertaken responsibility for the care of an animal - either because they are the owner of the animal, or because they have agreed to kennel or board the animal, or because they have otherwise assumed responsibility for the animal's care.
And even though AS 11.61.140(a)(2) is silent regarding this principle, the parties recognized that this principle controlled the outcome of Sickel's case: they actively litigated whether Sickel had undertaken personal responsibility for the care of the horses, and their final arguments to the jury emphasized that this question was dispositive of Sickel's guilt or innocence. We therefore affirm Sickel's conviction.
The scope of the duty of care under AS 11.61.140(a)(2)
Sickelwas charged with violating subsection (a)(2) of the cruelty to animals statute. This clause of the statute applies to a person who "fails to care for an animal". In other words, the actus reus of this crime is defined as an omission - a failure to act.
And as we explained earlier, the law does not punish a person's failure to act unless that failure to act constitutes a breach of that person's legal duty. See AS 11.81.900(b)(43) (defining "omission"). And normally, a person has no duty to take affirmative action to prevent a crime or to protect others from harm.  But the common law recognizes several instances in which one person's relationship to another person creates a duty of protection or care. Thus, under the common law, parents have a duty to protect their minor children, ship captains must come to the aid of their crew and their passengers, and ...