Submitted on Briefs: February 13, 2013
District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause Nos. DC-11-007(D) and DC-11-010(D) Honorable David M. Ortley, Presiding Judge
For Appellant: Wade Zolynski, Chief Appellate Defender, Garrett R. Norcott, Assistant Appellate Defender, Helena, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Kenneth R. Park, Lori Adams, Deputy Flathead County Attorneys, Kalispell, Montana
Laurie McKinnon Justice
¶1 Cheryl Lee Criswell and Edwin James Criswell were convicted in the Eleventh Judicial District Court, Flathead County, of aggravated animal cruelty. The Criswells appeal, raising two issues: (1) whether the State presented sufficient evidence to convict and (2) whether the District Court abused its discretion in denying the Criswells' motion for a mistrial. We affirm as to both issues.
¶2 On January 5, 2011, the State charged Cheryl and Edwin each with one count of aggravated cruelty to animals, a felony, in violation of § 45-8-217(2), MCA. In the Amended Information, the State alleged that on or about December 17 through December 25, 2010, the Criswells knowingly, and without justification, subjected ten or more animals (specifically, cats) to mistreatment or neglect by confining the animals in a cruel manner and/or by failing to provide the animals with food and water of sufficient quantity and quality to sustain the animals' normal health. The two cases were consolidated for trial. Cheryl and Edwin were represented by separate counsel.
¶3 Prior to trial, the Criswells filed a motion in limine to exclude evidence of other crimes, wrongs, or acts—in particular, "any allegations, charges or bad acts regarding mistreatment of animals at the hands of the Defendants"—pursuant to Rule 404(b) of the Montana Rules of Evidence. The Criswells were concerned specifically about evidence of their alleged mistreatment of several hundred cats in Idaho some years earlier. They opined that the State intended to use the events in Idaho for "improper propensity" purposes. See State v. Stewart, 2012 MT 317, ¶ 61, 367 Mont. 503, 291 P.3d 1187. In response, the prosecution explained that it sought to use the Idaho evidence to show knowledge (i.e., that the Criswells knew that keeping their cats in the manner they did would harm or injure the cats) and absence of mistake (i.e., that the Criswells' alleged mistreatment of the cats in Montana was not inadvertent or accidental). The District Court held a hearing pursuant to State v. Eighteenth Jud. Dist. Ct., 2010 MT 263, ¶ 49, 358 Mont. 325, 246 P.3d 415, and thereafter ruled that the State could offer the evidence for the two limited uses proffered by the prosecution.
¶4 A three-day jury trial was held in September 2011. In their opening statements, the Criswells told the jury that they had operated an "animal rescue" in Idaho for several years, handling "hundreds and hundreds and hundreds of cats." Eventually, however, the operation was shut down. The Criswells kept a number of their cats and relocated to northwest Montana. They initially moved around, living for awhile on Plum Creek land until the company asked them to leave, and thereafter staying at various campgrounds. Finally, they moved onto some land near Marion (west of Kalispell).
¶5 The Criswells acknowledged to the jury in their opening statements that their situation in December 2010 was desperate. "They got snowed in, they had no vehicle, they had no fuel, they had no food, they had no money, they got really desperate, things got really bad." At that point, they had 116 cats. The Criswells told the jury that they loved their cats and did not set out to harm them. Rather, "tragedy" struck: "lack of funds, lack of assistance, a huge cold snap and storm, turned into a perfect storm for disaster." The Criswells suggested that the evidence would show that their situation was not the result of criminal behavior, but was due to circumstances beyond their control.
¶6 Deputy Flathead County Attorneys Kenneth R. Park and Lori Adams presented the State's evidence, which is detailed below under Issue One. At the close of the State's case-in-chief, the Criswells moved to dismiss for insufficient evidence. The District Court heard arguments and denied the motions as to both defendants. The Criswells then presented testimony from five defense witnesses, including the Criswells themselves, and the prosecution thereafter presented two rebuttal witnesses.
¶7 In closing arguments, prosecutor Park referred to the Criswells' living situation as a "squatters camp" and characterized the Criswells as "professional freeloaders." Park also asserted that the Criswells had been "run out" of Idaho for abusing animals, and he implied that the Criswells had spent money on medical marijuana in lieu of providing food for their cats. The Criswells jointly moved for a mistrial based on these remarks. While finding that Park's remarks had been improper, the District Court also found that the remarks, considered within the context of the entire three-day trial, did not prejudice the Criswells' right to a fair trial. The court thus denied their motion.
¶8 The jury found Cheryl and Edwin guilty. The District Court deferred imposition of sentence on Cheryl for a period of six years, and committed Edwin (who had a prior felony conviction) to the Department of Corrections for two years, with those two years suspended. Cheryl's and Edwin's sentences were made subject to various conditions, including that they each complete 200 hours of community service and that they pay restitution jointly and severally in the amount of $14, 684.47 to the Flathead County Animal Shelter. The District Court also limited Cheryl and Edwin to possessing only one companion animal each, provided the animal is spayed or neutered.
¶9 The Criswells now appeal, raising the same two issues. This Court has consolidated their appeals.
¶10 Issue One. Did the State present sufficient evidence to convict?
I. Standard of Review
¶11 Although the Criswells approach their sufficiency-of-the-evidence argument under two distinct theories, the governing legal standards are essentially the same.
¶12 On one hand, the Criswells contend that the State's evidence was insufficient to send the case to the jury and, thus, the District Court should have granted their mid-trial motion to dismiss. A motion to dismiss for insufficient evidence may be made at the close of the prosecution's evidence or at the close of all the evidence. Section 46-16-403, MCA. The motion should be granted only if, viewing the evidence in the light most favorable to the prosecution, there is not sufficient evidence upon which a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. State v. Rosling, 2008 MT 62, ¶ 35, 342 Mont. 1, 180 P.3d 1102. We review de novo a district court's conclusion as to whether sufficient evidence exists to convict. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511.
¶13 On the other hand, the Criswells contend that the State's evidence was insufficient to support the jury's ultimate finding of guilt and, thus, this Court should reverse their convictions. A claim of insufficiency of the evidence to support a verdict may be raised for the first time on appeal. State v. Granby, 283 Mont. 193, 198-99, 939 P.2d 1006, 1009 (1997). In assessing whether sufficient evidence supports a conviction, we view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. State v. Torres, 2013 MT 101, ¶ 16, 369 Mont. 516, 299 P.3d 804.
¶14 The District Court instructed the jury that to convict a person of aggravated animal cruelty, the State had to prove beyond a reasonable doubt that
1. The Defendant inflicted cruelty to animals on a collection, kennel, or herd of ...