Submitted on Briefs: August 30, 2017
Court of the Eighteenth Judicial District, In and For the
County of Gallatin, Cause No. DC 14-119CX Honorable Mike
Salvagni, Presiding Judge
Appellant: Chad Wright, Chief Appellate Defender, James R.
Reavis, Assistant Appellate Defender
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General
Lambert, Gallatin County Attorney, Russell A. Hart, Deputy
Michael E Wheat, Justice
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
David Wendel (Wendel) appeals from a January 22, 2016
District Court order denying in part his motion in limine
seeking to exclude evidence of a prior bad act. We affirm.
On December 27, 2012, Wendel left a message with the Gallatin
County Animal Control. He complained a German Shepard dog was
at large on his property, which he believed was owned by his
neighbors, Doug and Cindy Baier, that the dog was vicious and
scratched him, and that he did not have the dog contained but
did have the animal in pictures.
On December 29, 2012, the Baiers reported that Wendel might
have possession of or killed their German Shepard, Token.
Deputy Michael Van Meter (Van Meter) was dispatched to
investigate. Baier explained to Van Meter that he suspected
Wendel had the dog because there had been problems with
Wendel regarding the Baiers' other dogs in the past.
Specifically, two years earlier, Wendel had placed bowls of
anti-freeze with raw meat in them around his property.
Additionally, Wendel was on probation for an incident
regarding the dog where Wendel shot a gun at or near Doug
Doug Baier showed Van Meter dog paw prints which led onto
Wendel's property. Following the tracks, they encountered
Wendel's tenant, who stated Wendel had been on the
property but left for a few days. Van Meter noticed several
paw prints around the building as well as blood and trash
bags containing the carcass of a raptor. Van Meter proceeded
to get authorization from Wendel's probation officer to
search inside the residence.
Inside the residence, Van Meter found Token locked in a small
closet without food or water and about 20 degrees Fahrenheit.
Token seemed unharmed and no animal feces or urine were found
in the closet. Van Meter found what he testified to be
anti-freeze in a bowl outside of the closet. Subsequently, a
Montana Fish, Wildlife, and Parks game warden interviewed
Wendel regarding the raptor. In that interview, Wendel
admitted to trying to catch a dog matching Token's
description, but the dog ran off.
The State charged Wendel with Cruelty to Animals, Theft, and
Possession of a Wild Bird in Justice Court. Wendel filed a
motion to exclude evidence about the anti-freeze bowls with
meat in them. The Justice Court admitted the evidence and a
jury convicted Wendel of Cruelty to Animals and Possession of
a Wild Bird. Wendel moved for a trial de novo in the District
In the District Court, Wendel filed two motions in limine
based on M. R. Evid. 403 seeking to exclude multiple items of
evidence including the previous anti-freeze incident. The
District Court denied his motion regarding the anti-freeze
incident. On January 29, 2016, after a two-day trial, the
jury found ...