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State v. Wendel

Supreme Court of Montana

November 21, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
DAVID JOHN WENDEL, Defendant and Appellant.

          Submitted on Briefs: August 30, 2017

         District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 14-119CX Honorable Mike Salvagni, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, James R. Reavis, Assistant Appellate Defender

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General

          Marty Lambert, Gallatin County Attorney, Russell A. Hart, Deputy County Attorney

          OPINION

          Michael E Wheat, Justice

         ¶1 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 Montana Reports.

         ¶2 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.

         ¶3 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.

         ¶4 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 Baier.

         ¶5 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.

         ¶6 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.

         ¶7 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 Court.

         ¶8 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 ...


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