and 14CA1436. People v. Harris , 2016 Colo. App. LEXIS 1549 ( 2016 )

COLORADO COURT OF APPEALS 2016COA159
Court of Appeals Nos. 14CA1435 & 14CA1436
Pueblo County District Court Nos. 12CR222 & 12CR27
Honorable William David Alexander, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Valerie Christine Harris,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE HARRIS
Dailey and Furman, JJ., concur
Announced November 3, 2016
Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Darol C. Biddle, Pueblo, Colorado; Darrel L. Campbell, Westminster, Colorado,
for Defendant-Appellant
¶1 Valerie Christine Harris was convicted of twenty-two counts of
cruelty to animals after dozens of malnourished animals were
discovered on her property by employees of the Humane Society
acting as state animal protection agents.
¶2 Her appeal raises two novel issues of statutory construction:
first, we consider whether, under section 35-42-107(7), C.R.S.
2016, an animal protection agent who is an employee of the
Humane Society is authorized to obtain a search warrant to
investigate the suspected mistreatment of horses. We conclude that
the agent exceeded her statutory authority but determine that
suppression of the evidence seized in executing the warrant is not
required.
¶3 Second, we consider the proper unit of prosecution in an
animal cruelty case. Harris contends that her mistreatment of the
twenty-two animals constituted one continuous course of conduct,
and the district court’s entry of judgment on twenty-two counts
therefore violated her rights under the Double Jeopardy Clause. We
conclude, however, that under section 18-9-202, C.R.S. 2016,
cruelty to each identified animal victim constitutes a separate and
distinct offense.
1
¶4 Harris raises a number of other claims, which we address in
turn and reject. Accordingly, we affirm.
I. Background
¶5 In December 2011, Harris’s neighbor called animal control to
report a dead horse near the fence line of his property with Harris.
Animal protection agent Sergeant Stephanie Garcia and a fellow
officer, employees of the nonprofit corporation Humane Society of
the Pikes Peak Region, responded to the call and discovered that
the dead horse was visibly emaciated. Using binoculars, the agents
observed additional horses, a donkey, and a llama on Harris’s
property, all of which also appeared malnourished.
¶6 Based on the condition of the animals, Sergeant Garcia sought
a search warrant (the horse warrant) for Harris’s ranch to
investigate possible animal cruelty. During the search, conducted
on January 6, the animal protection agents and accompanying law
enforcement officers discovered a recently deceased donkey that,
like the previously discovered deceased horse, appeared drastically
underfed. About one-third of the horses on the property similarly
showed signs of starvation.
2
¶7 The officers also discovered a number of dogs showing signs of
neglect: many of them appeared severely malnourished, and they
did not appear to have adequate care or shelter. However, the
horse warrant only allowed the agents to search for and seize
abused livestock. Based on her observations of the dogs, Sergeant
Garcia obtained a second warrant (the dog warrant) to search for
and seize mistreated domestic dogs, which was executed that same
day.
¶8 Harris was charged with fifteen counts of cruelty to animals
(second offense)1 and two counts of aggravated cruelty to animals
for needlessly killing an animal (case 12CR27).
¶9 Approximately three weeks later, on January 27, the same
neighbor who had made the initial report informed animal control
that three dead horses had been dragged onto his property. The
neighbor later observed Harris and her brother attempting to drag
the horses back onto her property. Sergeant Garcia responded to
the call and, after observing the three dead horses, contacted
1She was originally charged with seventeen counts of cruelty to
animals, but two counts were dismissed before trial.
3
Harris. With Harris’s permission, Sergeant Garcia entered onto her
property and discovered two additional dead horses.
¶ 10 Harris was charged in a separate case with five counts of
aggravated cruelty to animals for needlessly killing the five horses
(case 12CR222). The two cases were later consolidated for trial.
¶ 11 At trial, the prosecution presented multiple witnesses,
including an expert in veterinary medicine, who were on the
property during the search. All of these witnesses testified that the
animals at issue in the case appeared severely malnourished and
that there was no evidence of food on the property. To demonstrate
this fact, the prosecution submitted numerous pictures depicting
the visibly emaciated animals.
¶ 12 Harris’s theory of defense was that the horses were
malnourished due to excess sulfates in the water. She insisted that
she was regularly feeding her horses and justified the absence of
any food on the ranch by explaining that she procured hay from a
neighbor on a daily basis. In support of this defense, Harris
presented evidence that a test had revealed high sulfate levels in
her well water, and an expert witness who opined that this level of
sulfates in the water could cause horses to be malnourished.
4
¶ 13 The jury convicted Harris on all counts. In a bifurcated
proceeding, the court determined that the fifteen animal cruelty
convictions counted as a second offense due to Harris’s prior
misdemeanor convictions for animal cruelty in 2007. The court
sentenced Harris to concurrent ten-year terms of probation for all
counts of conviction in case 12CR27. On the five aggravated animal
cruelty counts in case 12CR222, the court sentenced Harris to
three years in the custody of the Department of Corrections, to run
concurrently to each other and to her sentences in 12CR27.
II. The Search Warrants
¶ 14 In the district court, Harris moved to suppress all evidence
obtained from the search on the grounds that the animal protection
agents were not statutorily authorized to obtain a livestock warrant
and that both warrants lacked probable cause. She renews that
argument on appeal.
¶ 15 We agree that the animal protection agent exceeded her
statutory authority in procuring the horse warrant. However, we
reject Harris’s argument that the warrants were otherwise deficient
because they were not supported by probable cause. Based in part
on this latter determination, we conclude that the statutory
5
violation does not implicate constitutional concerns and, therefore,
does not require suppression of any evidence obtained from the
search. Accordingly, we affirm the trial court’s denial of the motion
to suppress. See People v. Aarness, 150 P.3d 1271, 1277 (Colo.
2006) (we may affirm the district court on any grounds supported
by the record).
A. Authority to Obtain the Horse Warrant
¶ 16 Harris contends that, although Sergeant Garcia is a peace
officer under the Animal Protection Act, because she is an employee
of a nonprofit organization, she was not statutorily authorized to
investigate cases of cruelty to livestock.
¶ 17 The People respond that Harris raised this issue for the first
time on appeal, but our review of the record establishes that
Harris’s counsel argued the issue at the hearing on the motion to
suppress evidence.2 Accordingly, the claim of error is preserved.
2 Defense counsel stated:
And there’s no response by the People denying
the limitations that are set out in the Animal
Protections Act, 35-42-107, Paragraph 7,
where it says, ‘Agents authorized to investigate
cases of livestock shall be employees of
6
¶ 18 Ordinarily, in reviewing the trial court’s ruling on a motion to
suppress evidence, we are presented with a mixed question of fact
and law and apply a dual standard of review, deferring to the
factual findings and reviewing legal conclusions de novo. People v.
Vaughn, 2014 CO 71, ¶ 9. Here, Harris’s contention raises an issue
of statutory construction, and thus we review her claim de novo.
People v. Chavez-Barragan, 2016 CO 16, ¶ 9.
¶ 19 Our primary duty in interpreting statutes is to give full effect
to the intent of the General Assembly. Ryan Ranch Cmty. Ass’n v.
Kelley, 2014 COA 37M, ¶ 39, aff’d, 2016 CO 65. To determine
legislative intent, we look first to the plain language of the statute.
State v. Nieto, 993 P.2d 493, 500 (Colo. 2000). When the language
of a statute is clear, we apply the statute as written. Id.
¶ 20 Under section 35-42-107, the Colorado Commissioner of
Agriculture may appoint animal protection agents, who are
designated as peace officers. These agents may be employees of the
state, nonprofit corporations, municipal corporations, counties,
division of agriculture, the brand inspector,
and the sheriffs.’ We don’t have that here.
7
cities, cities and counties, or any other local governmental entity or
political subdivision of the state. § 35-42-107(2).
¶ 21 Harris does not dispute that Sergeant Garcia was properly
commissioned as an animal protection agent even though she was
an employee of the Humane Society, a private nonprofit
organization. She contends, though, that under section
35-42-107(7), only state employees may investigate livestock cases.
¶ 22 Subsection 107(7) specifies that “[a]gents authorized to
investigate cases involving livestock shall be employees of the
division or the division of brand inspection of the department or any
sheriffs when appointed and within their jurisdiction.” In
construing this provision, we must look first to the plain language
of the statute, Nieto, 993 P.2d at 500, which indicates that agents
who investigate livestock cases “shall” be specifically designated
public officials. “It is axiomatic that the term ‘shall’ is usually
interpreted to make the provision in which it is contained
mandatory.” Estate of Guido v. Exempla, Inc., 2012 COA 48, ¶ 25;
see also Hillebrand Constr. Co. v. Worf, 780 P.2d 24, 25 (Colo. App.
1989) (the term “shall” connotes a mandatory requirement). Thus,
under the plain language of the statute, the provision restricts the
8
investigation of livestock cases to employees of the Division of
Agriculture, brand inspectors, and sheriffs.
¶ 23 This interpretation of the provision’s plain language comports
with other standards applicable to investigations involving livestock.
Because livestock generally have greater economic value than
companion animals, the article provides certain protections for
owners of livestock. For example, livestock cannot, under any
circumstances, be seized without a court order. Compare
§ 35-42-109(2)(b), C.R.S. 2016 (livestock may only be seized
pursuant to a court order, even when the animal’s life or health is
endangered), with § 35-42-109(2)(a) (companion animals may be
seized whenever the animal’s life or health is endangered).
¶ 24 Our interpretation insures that owners of livestock have a
broader remedy against agents who commit negligence or
misconduct. The state may disclaim liability for the conduct of
animal protection agents employed by nonprofit organizations, see
§ 35-42-107(3), but it is liable for the conduct of the designated
public officials. We believe the legislature’s mandate that animal
protection agents who seize livestock shall be employees indicates
9
an intent that the state be accountable for the misdeeds of agents
entrusted with livestock investigations.
¶ 25 The People insist that section 34-42-107(7) does not limit the
animal protection agents who are authorized to investigate
livestock; rather, it confers employment status on those agents.
But they offer no support for this novel interpretation, and this
construction does not comport with the plain language of the
statute or its purpose. See Tatum v. Basin Res., Inc., 141 P.3d 863,
871 (Colo. App. 2005) (“Courts may not interpolate into a statute
words that it does not contain, or extract a meaning which is not
expressed by it.”). Accordingly, we reject this reading of the statute.
¶ 26 Thus, because Sergeant Garcia is an employee of a nonprofit
corporation, she was not authorized to investigate livestock cases.
And the People do not dispute that the horses at issue are livestock.
Therefore, we conclude that Sergeant Garcia was not authorized to
investigate Harris’s suspected mistreatment of the horses or to
obtain the horse warrant.
B. Remedy for the Statutory Violation
¶ 27 Next, we must decide the appropriate remedy for this violation.
Both parties assume that, if Sergeant Garcia had no authority to
10
obtain the horse warrant, the search necessarily violated Harris’s
Fourth Amendment right to be free from unreasonable searches and
seizures. On this basis, Harris contends that the exclusionary rule
applies, and thus the evidence obtained during the search should
have been suppressed. The People maintain that the evidence was
properly admitted under the “good faith exception” to the
exclusionary rule, as codified in section 16-3-308(1), C.R.S. 2016.
We reject both contentions.
¶ 28 We conclude that, although Sergeant Garcia was not
authorized to obtain the horse warrant, the statutory violation did
not amount to a constitutional violation. Accordingly, the
exclusionary rule does not apply and the evidence was properly
admitted at trial.
¶ 29 “[T]he exclusionary rule is a judicially created doctrine whose
sole purpose is to deter future Fourth Amendment violations.”
People v. Marko, 2015 COA 139, ¶ 150. Violations of statutory
provisions, though, are not per se violations of the Fourth
Amendment. People v. Hamilton, 666 P.2d 152, 156 (Colo. 1983).
Thus, before employing the exclusionary rule as a remedy, we must
determine whether there was a constitutional violation, rather than
11
a mere statutory violation. See People v. Bowers, 716 P.2d 471, 473
(Colo. 1986) (“[S]uppression of evidence is a drastic remedy and is
generally confined to violations of constitutional rights.”); People v.
Casillas, 2015 COA 15, ¶ 19 (“A statutory violation does not
ordinarily trigger suppression of evidence because suppression ‘is
designed to effectuate guarantees against deprivation of
constitutional rights.’” (quoting People v. McKinstry, 843 P.2d 18, 20
(Colo. 1993))) (cert. granted May 16, 2016).
¶ 30 Harris contends, or rather assumes, that the horse warrant
was constitutionally deficient because Sergeant Garcia was not
authorized to obtain it. But to be valid under both the United
States and Colorado Constitutions, a warrant must meet three
requirements: (1) it must have been issued by a neutral,
disinterested magistrate; (2) those seeking the warrant must have
demonstrated to the magistrate their probable cause to believe that
the evidence sought would aid in a particular apprehension or
conviction for a particular offense; and (3) the warrant must
particularly describe the things to be seized, as well as the place to
be searched. People v. Pacheco, 175 P.3d 91, 94 (Colo. 2006);
12
Marko, ¶¶ 145-46; see also Bowling v. Rector, 584 F.3d 956, 969
(10th Cir. 2009).
¶ 31 Based on these requirements, Sergeant Garcia’s acting beyond
her statutory authority when she obtained the horse warrant has
no bearing on the constitutionality of the warrant and related
search. See Bowling, 584 F.3d at 968 (warrant was constitutional
even though officer acted beyond his statutory authority when he
applied for it); United States v. Freeman, 897 F.2d 346, 348 (8th Cir.
1990) (A limited-authority officer’s conduct in excess of his
statutory jurisdiction is an example of “procedural violations which
do not implicate the constitutional values of probable cause or
description with particularity of the place to be searched and items
to be seized.”). Whether or not she exceeded her statutory authority
is simply unrelated to the core constitutional concerns of a neutral
magistrate, probable cause, and particularity. Indeed, this
statutory violation “is not, without more, significantly relevant to
our Fourth Amendment analysis.” Bowling, 584 F.3d at 967.
¶ 32 Accordingly, if the horse warrant procured by Sergeant Garcia,
although obtained in excess of her statutory authority, meets the
three requirements of a neutral magistrate, probable cause, and
13
particularity, there is no constitutional violation. While Harris does
not contest that the first and third requirements were met, she does
contend that the warrants were not supported by probable cause.
¶ 33 An affidavit establishes probable cause if the affidavit contains
“sufficient facts to warrant a person of reasonable caution to believe
that contraband or evidence of criminal activity is located at the
place to be searched.” People v. Miller, 75 P.3d 1108, 1112 (Colo.
2003). In determining whether probable cause exists, a judge must
look to the totality of the circumstances and make a “practical,
commonsense decision” as to whether there is a fair probability that
a search will reveal contraband or evidence of a crime. People v.
Scott, 227 P.3d 894, 897 (Colo. 2010) (quoting Pacheco, 175 P.3d at
94). A court reviewing the validity of a search warrant does not
engage in de novo review but rather examines whether the
magistrate had a substantial basis for concluding that probable
cause existed. Pacheco, 175 P.3d at 94.
¶ 34 Here, probable cause clearly existed for the horse warrant.3
The warrant affidavit stated that the affiant observed on Harris’s
3Harris contends that this warrant stemmed from an illegal search
on December 31, when the officers used binoculars to look into her
14
property several horses that appeared underfed because they had
visible spines and pin bones, and a deceased horse that appeared
malnourished because his “[r]ibs, spine, withers, loin, [and] pin
bones are all visible.” The affiant further stated that, as a trained
animal protection officer, these observations led her to believe that
the animals were not being provided with adequate sustenance.
She also noted that Harris had previously been convicted of animal
cruelty for neglecting livestock and domestic animals, and that
there is “a long history of animal neglect” on this property,
supporting the inference that the observed malnourished horses
were not merely sick or old. Cf. People v. Bustam, 641 P.2d 968,
971-72 (Colo. 1982) (knowledge of prior criminal record, in addition
to other facts, supported probable cause for warrant on new
instance of the same crime).
¶ 35 Given that the crime of animal cruelty can be established by
demonstrating that defendant’s animals were not provided sufficient
sustenance and care, these facts provide a substantial basis for the
pastures from a neighboring property. However, this action was not
a search under the Fourth Amendment. See People v. Oynes, 920
P.2d 880, 883 (Colo. App. 1996) (officers did not conduct a search
by looking into the defendant’s brightly lit home while standing in
an open field using binoculars).
15
judge to have found probable cause that the crime of animal cruelty
was occurring on the property. Accordingly, the horse warrant was
constitutionally sufficient.4
¶ 36 In the absence of a constitutional violation, suppression of
evidence is the appropriate remedy only if the statutory violation
was “willful and recurrent.” People v. Lancaster, 2015 COA 93,
¶ 22. The record does not support a conclusion that this violation
was willful and recurrent. People v. Wolf, 635 P.2d 213, 218 (Colo.
1981).
III. Unit of Prosecution in Animal Cruelty Cases
¶ 37 Harris was convicted of fifteen counts of animal cruelty
(second offense) and seven counts of aggravated animal cruelty.
She contends that the court violated section 18-1-408(1)(e), C.R.S.
2016, and double jeopardy principles by entering judgment and
imposing sentence on each count of conviction for what amounted
to a single course of conduct. We review these questions of law de
4 We also reject Harris’s contention that the dog warrant lacked
probable cause. The affidavit detailed the poor conditions in which
the dogs were found, including the lack of adequate food, shelter,
and water; that they were thin; and “[o]ne dog that was emaciated
was observed eating the carcass of [a] dead donkey.”
16
novo. See People v. Reed, 2013 COA 113, ¶ 69 (we review district
court’s interpretation of sentencing statutes de novo); People v.
Arzabala, 2012 COA 99, ¶ 19 (de novo review applies to double
jeopardy claims).
¶ 38 Under section 18-1-408 — entitled “Prosecution of multiple
counts for same act” — a defendant cannot be convicted of more
than one offense if “[t]he offense is defined as a continuing course of
conduct and the defendant’s course of conduct was uninterrupted,
unless the law provides that specific periods or instances of such
conduct constitute separate offenses.” § 18-1-408(1)(e).
¶ 39 The statute is designed to prevent the problem of “multiplicity”
— the charging of multiple counts and the imposition of multiple
punishments for the same criminal conduct. People v. Borghesi, 66
P.3d 93, 98 (Colo. 2003). The vice of multiplicity is that it may lead
to multiple sentences for the same offense and thereby implicate
double jeopardy protections. Woellhaf v. People, 105 P.3d 209, 214
(Colo. 2005).
¶ 40 If a defendant is simultaneously prosecuted for distinct
offenses under the same statute, as Harris was here, to determine
whether the defendant’s rights against double jeopardy were
17
violated, a reviewing court must resolve (1) whether the unit of
prosecution prescribed by the legislature permits the charging of
multiple offenses and (2) whether the evidence in support of each
offense justified the charging of multiple offenses and the
imposition of multiple sentences. See Quintano v. People, 105 P.3d
585, 590 (Colo. 2005); Woellhaf, 105 P.3d at 215.
¶ 41 “Unit of prosecution” refers to the extent to which the relevant
statute permits the prosecution to separate the defendant’s conduct
into discrete acts for purposes of prosecuting multiple offenses.
Quintano, 105 P.3d at 590. The determination of the proper unit of
prosecution in this case turns on whether we construe the statute
as designed primarily to protect property interests or primarily to
protect the animals themselves.
¶ 42 If we view animal cruelty as primarily an offense against
property, then Harris committed a single offense by injuring or
destroying the animals, much like the defendant who commits a
single offense by destroying various items of personal property of
another. See, e.g., People v. Feldscher, 380 N.W.2d 50, 51-52 (Mich.
Ct. App. 1985) (unit of prosecution in destruction of property case
was single incident of destroying property of another person,
18
regardless of how many items of property were destroyed); see also
People v. Harris, 139 Cal. Rptr. 778, 786 (Cal. Ct. App. 1977)
(defendants charged with receiving various stolen items could be
convicted only of one count of receipt of stolen property). But if we
view animal cruelty as an offense against a sentient being that the
legislature is trying to protect from needless pain and suffering,
Harris committed twenty-two separate offenses. See Borghesi, 66
P.3d at 98 (armed robbery statute is designed primarily to protect
people, not property, and therefore each victim supported a
separate count of armed robbery).
¶ 43 To determine the unit of prosecution, we look to the statute.
Arzabala, ¶ 23. As already explained, in construing a statute, we
must discern and effectuate the intent of the legislature based
primarily on the plain and ordinary meaning of the statutory
language. Id.
¶ 44 The plain language of section 18-9-202 suggests that the unit
of prosecution is “an animal.” As relevant here, a person commits
animal cruelty if he or she “mistreats or neglects any animal . . . or,
having the charge or custody of any animal, fails to provide it with
proper food, drink, or protection from the weather consistent with
19
the species, breed, and type of animal involved.” § 18-9-202(1)(a).
And, under subsection (1)(b) a person commits aggravated cruelty
to animals if he or she “knowingly tortures, needlessly mutilates, or
needlessly kills an animal.” The phrases “any animal” and “an
animal” suggest that a person commits a separate offense for each
animal that is mistreated or neglected, deprived of adequate
sustenance, or killed. See Borghesi, 66 P.3d at 98 (robbery
statute’s reference to a singular victim suggests that the legislature
intended to create a separate offense for each person against whom
the defendant uses force and intimidation).
¶ 45 Moreover, whether conduct constitutes an offense is
dependent upon the particular species, breed, or type of animal
involved in the criminal act. This provision emphasizes that the
specific mistreated animal is the subject of the offense.
¶ 46 Importantly, in prohibiting the killing or abuse of “any” or “an”
animal, the statute makes clear that a person can be charged with
mistreating his own animal or a stray animal, demonstrating that
property law principles do not underlie the statute’s purpose. And
we note that the statutes appear in the section of criminal laws
20
devoted to “offenses against public peace, order, and decency”
rather than the section involving “crimes against property.”
¶ 47 In our view, the language of the statute demonstrates that the
legislature perceived animal cruelty not as an offense against
property but as an offense against the individual animal.
¶ 48 This interpretation is consistent with the evolution of animal
cruelty laws in the United States. Animal cruelty was not a crime
under common law. See McCausland v. People, 58 Colo. 303, 305,
145 P. 685, 686 (1914). Early animal cruelty laws were designed to
protect the property interests of owners and did not restrict what an
owner could do to his or her own animals. See David Favre, Living
Property: A New Status for Animals Within The Legal System, 93
Marq. L. Rev. 1021, 1027 (2010).5
¶ 49 But by the end of the nineteenth century, many states had
enacted laws that reflected society’s acceptance of the idea that
animals had an inherent right to be free from unnecessary pain and
suffering and that the legal system should recognize that right.
5 An 1846 Vermont law, for example, made it unlawful for a person
to “wil[l]fully and maliciously kill, wound, maim or disfigure any
horse, or horses, or horse kind, cattle, sheep, or swine, of another
person.” Act of Oct. 23, 1846, no. 34, § 2, 1846 Vt. Acts & Resolves
35 (emphasis added).
21
See, e.g., Grise v. State, 37 Ark. 456, 456, 459 (1881) (Statute
making it unlawful to needlessly mutilate or kill “any living
creature” was enacted to “protect some abstract rights in all that
animate creation . . . from the largest and noblest to the smallest
and most insignificant.”); Stephens v. State, 3 So. 458, 458 (Miss.
1888) (Statute making it unlawful for person to abuse certain
animals, “whether they belong to himself or another,” is “for the
benefit of animals, as creatures capable of feeling and suffering, and
it was intended to protect them from cruelty, without reference to
their being property.”).6
¶ 50 Colorado enacted such a statute in 1889; the supreme court
determined that the law precluded members of a country club from
trapping, then releasing and shooting, doves for their amusement.
See Waters v. People, 23 Colo. 33, 46 P. 112 (1896). The court
observed that animal cruelty laws had evolved as society gained a
greater understanding of animals’ capacity for pain and suffering:
6 Grise v. State, 37 Ark. 456 (1881), was still a sign of its times: the
court cautioned against construing the statute to lead to absurd
results, like punishing a person for such petty offenses as
“impal[ing] a butterfly” or “drown[ing] a litter of kittens.” Id. at 459;
see also State v. Pierce, 7 Ala. 728, 731 (1845) (offense against
animals could be prosecuted as “malicious mischief” but only if it
could be proved that the animal killed was the property of another).
22
¶ 51 It is of common knowledge that within the past few years, as
incident to the progress of civilization, and as the direct outgrowth
of that tender solicitude for the brute creation which keeps pace
with man’s increased knowledge of their life and habits, laws, such
as the one under consideration, have been enacted by the various
states having the common object of protecting these dumb
creatures from ill treatment by man. Id. at 35, 46 P. at 113.7
¶ 52 As states move away from property-law-based principles,
many animal cruelty statutes now explicitly define the unit of
prosecution as each animal victim. See Alaska Stat. § 11.61.140(b)
(2016) (“Each animal that is subject to cruelty to animals . . . shall
constitute a separate offense.”); Ark. Code Ann. § 5-62-103 (2016)
(“[E]ach alleged act . . . of cruelty to animals committed against
more than one . . . animal may constitute a separate offense.”); La.
Stat. Ann. § 14:102.1(A)(3) (2016) (“[I]f more than one animal is
subject to an act of cruel treatment . . . , each act shall constitute a
separate offense.”); Mont. Code Ann. § 45-8-211(2)(c) (2016)
7 The statute made it a crime for any person to “torture[],
torment[], . . . or needlessly mutilate[] or kill[] . . . any animal.”
Waters v. People, 23 Colo. 33, 34, 46 P. 112, 113 (1896) (quoting
Mills’ Ann. Stat. § 104 (1891)).
23
(“[W]hen more than one animal is subject to cruelty to animals,
each act may comprise a separate offense.”); Wyo. Stat. Ann.
§ 6-3-203(k) (2016) (“Each animal affected by the defendant’s
conduct may constitute a separate count . . . under this section.”);
see also Cal. Penal Code § 597(f) (West 2016) (“[E]ach act of
malicious and intentional maiming, mutilating, or torturing a
separate specimen of [endangered species or protected animal] is a
separate offense.”); 18 Pa. Cons. Stat. § 5511(e.1) (2016) (“A person
who violates this subsection on a second or subsequent occasion
commits a misdemeanor of the third degree for each equine animal
transported.”); State v. Helmbright, 990 N.E.2d 154, 164 (Ohio Ct.
App. 2013) (rejecting property law principles and holding that
animal cruelty statute, like domestic violence law, creates a
chargeable offense for each “victim of a defendant’s conduct”).
¶ 53 Based on the language and purpose of section 18-9-202, we
join those states that have delineated the unit of prosecution in
animal cruelty cases as each animal abused or killed. Accordingly,
we conclude that the unit of prosecution permits the charging of
multiple offenses.
24
¶ 54 Nonetheless, Harris argues that the conduct underlying her
convictions was not a series of discrete and distinct criminal acts
but instead a single course of conduct that resulted in the death or
poor health of a number of animals. In light of our conclusion that
the unit of prosecution is an animal, we have little difficulty in
further concluding that the prosecution proved twenty-two factually
distinct offenses. See People v. Abiodun, 111 P.3d 462, 470 (Colo.
2005) (“[F]actual distinctness is ultimately a function of the
legislature’s definition of the crime itself — the legislature’s choice
of an allowable unit of prosecution.”).
¶ 55 To determine whether offenses are factually distinct, courts
consider whether the acts occurred at different times and were
separated by intervening events; whether there were separate
volitional acts; and factors such as temporal proximity, the
defendant’s intent, and the number of victims. People v. McMinn,
2013 COA 94, ¶ 22.
¶ 56 While Harris’s conduct in mistreating the animals occurred
over the same period of time and consisted of the same general acts,
each of the charged offenses had a different, identifiable animal
victim. We conclude that the existence of multiple victims created
25
factually distinct offenses. See People v. Grant, 30 P.3d 667, 670
(Colo. App. 2000) (section 18-1-408(3) not applicable where offense
involved multiple victims), aff’d, 48 P.3d 543 (Colo. 2002). And, as
we have explained, the evidence supported the jury’s verdict that
each of the identified animals had been mistreated.
¶ 57 We therefore reject Harris’s claim that her sentence violated a
statutory or constitutional prohibition against multiple convictions
or punishments for a single offense.
IV. Other Contentions
A. Sufficiency of the Evidence of Aggravated Cruelty to Animals
¶ 58 Harris contends that there was insufficient evidence to convict
her of the seven counts of aggravated cruelty to animals for
needlessly killing an animal. She insists that there was no evidence
that definitively proved that the horses died from starvation, and
therefore the jury could not convict her on these counts. We are
not persuaded.
¶ 59 On a challenge to the sufficiency of the evidence, we review the
record de novo to determine whether the evidence, viewed as a
whole and in the light most favorable to the prosecution, is both
“substantial and sufficient” to support the defendant’s guilt beyond
26
a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo.
2005). In applying this test, “we must give the prosecution the
benefit of every reasonable inference that might fairly be drawn
from the evidence.” People v. Atencio, 140 P.3d 73, 75 (Colo. App.
2005). And we will not disturb the fact finder’s determinations of
witness credibility and the weight to be given to the evidence.
People v. McIntier, 134 P.3d 467, 471 (Colo. App. 2005).
¶ 60 A person commits the crime of aggravated cruelty to animals
if, as relevant here, she “needlessly kills an animal.”
§ 18-9-202(1.5)(b).
¶ 61 Harris contends that there was insufficient evidence to prove
that she actually killed the animals, and that they did not otherwise
die of natural causes. While we agree that there was no direct
evidence that the horses died because Harris did not feed them,
there was substantial circumstantial evidence from which the jury
could have drawn this inference and reached this conclusion
beyond a reasonable doubt. See People v. Medina, 51 P.3d 1006,
1013 (Colo. App. 2001) (“[I]n determining sufficiency the law makes
no distinction between direct and circumstantial evidence.”), aff’d
sub nom. Mata-Medina v. People, 71 P.3d 973 (Colo. 2003); cf.
27
People v. Strohm, 185 Colo. 260, 268, 523 P.2d 973, 977 (1974)
(cause of death can be established by circumstantial evidence).
¶ 62 First, it is uncontroverted that the horses were malnourished.
Dr. Gary Mason, who testified as an expert in veterinary medicine
and veterinary pathology, tested femur bones recovered from nine
deceased animals discovered during this investigation. According to
Dr. Mason, all seven of the bones susceptible to testing8 showed a
loss of fat in the bone marrow. This fat loss is “the end stage of
inability to acquire enough energy from the diet. . . . It’s the end
result of insufficient energy intake, and that fat is the last in the
body to be metabolized in order to maintain life.” He testified that
the fat loss indicates that “[t]here is some condition which is long
term in nature that’s required those animals to use marrow fat to
stay alive.” He described the condition as a “chronic negative
energy balance.” While Dr. Mason could not definitively determine
the cause of this chronic imbalance, he testified that it could be the
result of starvation and lack of proper feeding.
8Two of the femurs submitted were too old and dried out to
analyze.
28
¶ 63 In addition to the scientific evidence of malnutrition, there was
considerable testimony that the animals appeared emaciated.
Veterinarian Marvin Hamann, who was present during the
searches, testified that the dead horse and donkey discovered on
January 6 were “emaciated” and “basically skin and bones.”
Similarly, he testified that the additional dead horses discovered on
January 27 were “completely emaciated and just essentially skin
and bones.”
¶ 64 Further, there was sufficient evidence from which the jury
could determine that the horses were malnourished because they
were not properly fed. Dr. Hamann, who testified as an expert in
veterinary medicine,9 explained that he checked the property
looking for a feed source, but “[t]here was basically no feed on the
property,” even though one would need between seven and eight
hundred pounds of hay per day to feed the number of animals
found on the ranch. He further testified that there were no
remnants of feed or hay, which he would expect to see if the
9 The record reflects that the People moved to have Dr. Hamann
qualified as an unspecified “expert”; however, the foundation for
this qualification was entirely based on his veterinary practice with
cattle and horses.
29
animals were being fed regularly. Not only was there no feed on the
property, but Dr. Hamann also testified that the ranch did not have
sufficient grass on which the horses could graze. A multitude of lay
witnesses present during the January 6 search confirmed that there
was little to no food on the property and echoed Dr. Hamann’s
observations that there were no food remnants or grass for grazing.
¶ 65 Based on these observations, Dr. Hamann concluded that the
horses were “malnourished because of lack of food available.”
¶ 66 Finally, there was sufficient evidence from which the jury
could conclude that the horses died of malnutrition. Dr. Hamann
testified that chronic malnutrition eventually leads to death. And
Dr. Mason described the horses’ bone marrow condition as the “end
stage” of the animal’s inability to obtain sufficient energy, and that
they had to use the fat in the bone marrow to “stay alive” and
“maintain life.”
¶ 67 Harris maintains that because Dr. Mason could not rule out
other causes of malnutrition, such as disease or toxins in the water,
there was insufficient evidence to prove that her conduct caused the
animals’ deaths. But the prosecution is not obliged to disprove the
defendant’s theories in order for the evidence to be deemed
30
sufficient under the substantial evidence test. Clark v. People, 232
P.3d 1287, 1292 (Colo. 2010); see also State v. Angus, No. 05AP-
1054, 2006 WL 2474512 (Ohio Ct. App. Aug. 29, 2006)
(unpublished opinion) (holding animal cruelty conviction supported
by sufficient evidence where veterinarian testified that emaciated
condition of animals was due to lack of food, not whipworms, as the
defendant contended). Moreover, Dr. Hamann testified that,
contrary to Harris’s theory of defense, there was no evidence that
the horses were affected by disease or sulfates in the water; he
explained that if the horses were malnourished because of water
sulfates, there would have been evidence of diarrhea on the ranch,
and there was none.
¶ 68 Accordingly, we conclude that a rational juror could find proof
beyond a reasonable doubt that the horses died because Harris did
not sufficiently feed them.
B. Sufficiency of the Charging Document
¶ 69 Harris argues that the charging documents filed in the two
cases failed to charge an offense. She acknowledges that the
information in each case tracked the statutory language of the
31
offenses,10 but she insists that the charging documents also had to
allege the specific manner in which she killed the deceased animals;
the ways in which she mistreated the other animals; and the
definition of statutory terms, including “needless killing,”
10 In 12CR27, each of the cruelty to animals offenses was charged
identically, except that each count referred to a different animal by
its identifying number:
A0973012. On or about January 6, 2012,
[Harris] unlawfully, knowingly, recklessly, or
with criminal negligence, tormented, or
deprived of necessary sustenance, or allowed
to be housed in a manner that resulted in
chronic or repeated serious physical harm, or
having the charge or custody of an animal
failed to provide it with proper food, drink, or
protection from the weather consistent with
the species, breed and type of animal, or
otherwise mistreated or neglected, or caused or
procured the mistreatment or neglect of
animals, namely: canine listed above.
In 12CR222, each of the five counts of aggravated cruelty to
animals was charged identically, except that each described a
different animal:
On or about January 27, 2012, [Harris]
unlawfully, feloniously, and knowingly
tortured, needlessly mutilated, or needlessly
killed an animal, namely: a white with brown
leopard spot[s] Appaloosa horse; in violation of
section 18-9-202(1.5)(b), C.R.S.
32
“necessary sustenance,” and “mistreated or neglected.” We review
the sufficiency of the indictment de novo. McIntier, 134 P.3d at 470.
¶ 70 A charge is sufficient if it alleges sufficient facts to permit the
accused to prepare an adequate defense and to assure that the
defendant cannot be prosecuted again for the same crime. People v.
Chavez, 730 P.2d 321, 325 (Colo. 1986). To that end, if the
information identifies the essential elements of the crime charged, it
is sufficient. People v. Melillo, 25 P.3d 769, 778 (Colo. 2001).
Ordinarily, an information identifies the essential elements of the
crime when it tracks the statutory language. Id.
¶ 71 Harris’s reliance on People v. Beruman, 638 P.2d 789 (Colo.
1982), and People v. Donachy, 196 Colo. 289, 586 P.2d 14 (1978), is
misplaced. In Beruman, the defendant was charged with failing to
perform a duty imposed upon him by law in connection with his job
as a social services caseworker. The indictment, though, did not
inform the defendant of the duties he had failed to perform,
preventing him from preparing a defense to the charge. Because
the mandatory legal duty was not identified, the indictment was
insufficient. 638 P.2d at 794. Likewise, in Donachy, the public
official was charged with converting public money and property to
33
some unauthorized use, but the indictment did not provide any
further information. The court found that the vagueness of the
indictment did not sufficiently advise the defendant of the
prohibited conduct. 196 Colo. at 292-93, 586 P.2d at 16-17.
¶ 72 But here, the indictment set forth the prohibited conduct —
killing and mistreating specific animals by failing to provide
necessary sustenance and care. The indictment in this case was
sufficient to put Harris on notice of the charges against her and to
allow her to prepare an adequate defense. See Melillo, 25 P.3d at
778 (information was sufficient where it tracked statutory language
but did not specify how the defendant committed the crime of
sexual assault on a child); see also § 16-5-202(3), C.R.S. 2016 (“An
information may be filed using the language of the statute . . . .”).
C. Bifurcation of Trial
¶ 73 After the trial court granted the prosecution’s motion to
consolidate cases 12CR27 and 12CR222, Harris filed a motion to
bifurcate the trial. She argued that evidence of her prior
misdemeanor convictions, alleged in the information to support
each charge of animal cruelty (second offense), would be unduly
prejudicial in her trial on the substantive animal cruelty offenses.
34
Initially, the trial court denied her motion. However, on the fourth
day of trial, it reconsidered its ruling and announced that the
animal cruelty charges would be determined by the jury and the
existence of prior convictions would be determined separately by
the court. The prosecution did not present evidence of the prior
convictions to the jury.
¶ 74 On appeal, Harris contends that the trial court erred by
initially denying her motion for bifurcation.11 We review the denial
of a motion to bifurcate the trial for an abuse of discretion. See In
re Marriage of Foottit, 903 P.2d 1209, 1211 (Colo. App. 1995). A
trial court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair, or if its decision is based on an
erroneous understanding or application of the law. People v.
Casias, 2012 COA 117, ¶ 17.
¶ 75 Cruelty to animals is a class 1 misdemeanor; however, a
second or subsequent conviction is a class 6 felony. See
§ 18-9-202(2)(b)(I). Under this statutory scheme, the prior
11The People interpret Harris’s argument as a challenge to the
court’s decision to consolidate the two cases. But Harris presents
no argument with respect to the consolidation order and instead
focuses exclusively on the alleged prejudice that flowed from the
court’s denial of her bifurcation motion.
35
conviction is a sentence enhancer rather than a substantive
element of the offense. See People v. Schreiber, 226 P.3d 1221,
1223 (Colo. App. 2009) (prior conviction for indecent exposure was
sentence enhancer, not element of offense, even though prior
conviction raised offense from class 1 misdemeanor to class 6
felony).
¶ 76 Bifurcated trials are preferred in prosecutions for second or
subsequent offenses when the prior convictions are alleged as a
basis for imposition of a harsher sentence and are relevant only to
punishment. People v. Fullerton, 186 Colo. 97, 99, 525 P.2d 1166,
1167 (1974). To avoid prejudice to the defendant in the initial
determination of the issue of guilt, the trial court should conduct
the proceedings in two stages and determine the collateral issue of
enhanced punishment only after the jury has determined guilt on
the substantive offense. Id.
¶ 77 We will assume, therefore, that the trial court abused its
discretion by initially failing to grant Harris’s motion to bifurcate
the proceedings. But the error requires reversal under the
harmless error standard only if the error substantially influenced
the verdict or affected the fairness of the trial. Hagos v. People,
36
2012 CO 63, ¶ 12. The trial court ultimately agreed to the
bifurcation request; still, Harris contends that the damage had been
done — the trial court had read the charging document to the jury
at the beginning of trial, and the document repeatedly referenced
her prior misdemeanor convictions for animal cruelty.
¶ 78 We do not agree that the court’s one-time reading of the
information requires reversal. For one thing, there was no evidence
presented that Harris had prior convictions. At the time it read the
information to the jury, the court properly instructed the jurors that
the information was not evidence. We generally presume that the
jury understood and followed the court’s instructions. See People v.
Manyik, 2016 COA 42, ¶ 40 (although prosecutor’s comments were
improper, court had instructed the jury that lawyers’ arguments
were not evidence and the court of appeals presumes jurors
followed instructions). Additionally, the weight of the evidence
against Harris was significant and it is unlikely that the mere
reference to prior misdemeanor convictions substantially affected
the verdict. As well, the court offered to give the jury a curative
instruction, which defense counsel declined. See People v. Helms,
2016 COA 90, ¶ 61 (denial of mistrial after introduction of prior bad
37
act evidence was not abuse of discretion where weight of admissible
evidence was substantial and court offered to give curative
instruction). Accordingly, the trial court did not commit reversible
error by initially denying Harris’s bifurcation motion.
D. CRE 404(b) Evidence
¶ 79 Harris contends that the trial court improperly admitted
evidence of other bad acts under CRE 404(b). Harris challenges the
testimony of two witnesses, Daryel McCurry and Brett Smith, both
of whom testified regarding events and circumstances in 2007.12
She contends that this testimony detailed previous misconduct and
was not admitted for a proper purpose under Rule 404(b).
¶ 80 McCurry is a ranch hand who worked for Harris in the
summer of 2007. He testified that during his time on the ranch,
Harris owned approximately sixty horses, a third of which were in
poor condition and did not appear adequately fed. Further, he
explained that in his two months working on the ranch, there was
12 In her briefs, Harris contends that the CRE 404(b) evidence
relates to acts in both 2007 and 2009. On our review of the record,
however, the only testimony relating to 2009 was that horses were
not seized at that time. Further, while her opening brief purports to
challenge the admission of her previous criminal convictions
stemming from these incidents in 2007 and 2009, the trial court
excluded all references to the convictions.
38
only one delivery of hay. McCurry stated that the horses fed on
grass, but that there was not much grass around. During his two
months on the ranch, McCurry never saw a farrier13 or veterinarian
come out to the ranch. He also testified that he was present when
animal protection agents came to the ranch in 2007.
¶ 81 Officer Smith is an animal protection agent who had been
involved with Harris and her ranch since 2006. He testified that, in
2007, animal protection agents seized nineteen horses from Harris’s
ranch, seventeen of which were in very poor condition. He also
described one of the victim horses as a horse they had
contemplated seizing in 2007; he explained that in 2007, the horse
was thin, but only moderately so. Officer Smith also identified
several of the deceased horses as horses he had seen when he was
previously on the property. Finally, Officer Smith testified that
Harris had large quantities of pellet feed on the property in 2007,
but not in 2012.
¶ 82 The court admitted this evidence for the limited purpose of
proving “opportunity, mental culpability, knowledge, identity, or
absence of mistake.”
13 A farrier is person who trims and shoes horses’ hooves.
39
¶ 83 Pursuant to CRE 404(b), evidence of other crimes, wrongs, or
acts is inadmissible if its relevance depends on an inference that
the person has a bad character and acted in conformity with that
character. However, this evidence may be admissible for other
purposes. CRE 404(b).
¶ 84 A trial court has substantial discretion to determine the
admissibility of prior acts evidence, and such a determination will
not be disturbed on appeal absent an abuse of that discretion.
People v. Torres, 141 P.3d 931, 934 (Colo. App. 2006).
¶ 85 As an initial matter, much of the challenged testimony did not
describe other “bad acts,” which would be subject to Rule 404(b).
This includes Officer Smith’s testimony identifying the deceased
horses as Harris’s, which was a contested issue at trial; his
testimony that she used pellet feed in 2007, but that feed was not
found on the property in 2012; and McCurry’s testimony about the
condition of the ranch. Accordingly, Rule 404(b) is inapposite to the
admissibility of this testimony. See People v. Greenlee, 200 P.3d
363, 368 (Colo. 2009) (stating that evidence that does not comprise
“conduct, do[es] not amount to a crime, and do[es] not reveal prior
bad acts” does not implicate Rule 404(b)) (footnote omitted).
40
¶ 86 Even if we assume that the remainder of the challenged
testimony is subject to the limitations of Rule 404(b), we conclude
that it was properly admitted. Evidence that animal protection
agents previously seized horses in 2007, and that these horses were
in poor condition and not being fed regularly, is logically relevant to
a material fact: the evidence makes it less likely that, in 2012, the
horses were suffering from sulfate poisoning and experiencing
sudden weight loss, as Harris claimed. See CRE 401; Greenlee, 200
P.3d at 366 (Evidence is relevant where it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” (quoting CRE 401)). It also
supports the inference that Harris knew that infrequent feeding
could negatively impact the health of her horses and that she
disregarded this risk. See People v. Spoto, 795 P.2d 1314, 1318
(Colo. 1990) (Rule 404(b) evidence must be logically relevant to a
material fact).
¶ 87 Additionally, the logical relevance of this evidence is
independent of the inference that Harris has a bad character, and
that she acted in conformity with this character by neglecting her
41
horses. Rather, the evidence was admitted for the proper purpose
of proving Harris’s mens rea; it demonstrates that Harris was aware
of the potential consequences of sporadically feeding her horses,
and it negates the argument that the horses were malnourished
from some mistake or accident. See CRE 404(b) (permitting prior
misconduct evidence to prove intent and absence of mistake or
accident); People v. Davis, 218 P.3d 718, 729 (Colo. App. 2008)
(Rule 404(b) evidence was properly admitted to show absence of
mistake).
¶ 88 Finally, we conclude that the probative value of this evidence
is not substantially outweighed by the danger of unfair prejudice.
Spoto, 795 P.2d at 1318. The evidence presented at trial
overwhelmingly established that the animals were malnourished
and not properly maintained, and the only other possible
explanation for this fact was some mistake or accident (sulfate
poisoning, according to Harris). So the probative value of the
evidence outweighs any potential prejudice. Cf. People v. McBride,
228 P.3d 216, 227 (Colo. App. 2009) (probative value outweighed
prejudice because prior bad acts were directly relevant to whether
42
the crime charged was intentional, as the prosecution contended, or
accidental, as defendant claimed).
¶ 89 Accordingly, we perceive no error in the admission of the
challenged evidence.
E. Exclusion of Photographs of Healthy Animals
¶ 90 At trial, Harris attempted to introduce, through her brother,
photographs of all of the animals seized by the animal protection
officers. The trial court admitted into evidence only those
photographs depicting animals that were the subject of the criminal
charges.
¶ 91 On appeal, Harris contends that the trial court erred in
excluding the remaining photographs. The photographs of the
nonvictim horses were relevant, she argues, because they would
have established that some of the animals were in good condition,
and the presence of healthy animals would have undercut the
prosecution’s theory that she had systematically starved the
animals on her ranch. We review the trial court’s evidentiary
rulings for an abuse of discretion. People v. Clark, 2015 COA 44,
¶ 40.
43
¶ 92 We agree with Harris that the condition of the other animals
on the ranch was at least marginally relevant because that evidence
would tend to make the prosecution’s theory that Harris did not
feed her animals somewhat less probable. See CRE 401. And
relevant evidence is generally admissible. CRE 402.
¶ 93 The court, though, did not exclude all evidence of the other
animals’ condition: Dr. Hamann conceded that approximately two-
thirds of the horses on the ranch were in either good condition or
moderate condition and that only a third of the horses were in very
poor condition. Likewise, the expert admitted that while some
horses were dehydrated, others had normal hydration. Certain of
the defense witnesses also testified about the animals’ condition at
around the time of their seizure by the animal protection agents.
That evidence was sufficient to support Harris’s argument that she
was not systematically starving the animals on the ranch.
¶ 94 What the court did not allow was photographs of the horses
and dogs that the witnesses had already characterized as being in
good or moderate health. As to that specific evidentiary ruling, we
cannot say that the trial court abused its discretion.
44
¶ 95 Even relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consideration
of undue delay, waste of time, or needless presentation of
cumulative evidence. CRE 403; People v. Salazar, 2012 CO 20,
¶ 16. As the trial court noted, the photographs were merely
cumulative of the testimony that the nonvictim animals were in
generally “ok” condition. We agree that, under those
circumstances, the photos of animals already deemed to be healthy
or moderately healthy had no additional probative value.
Accordingly, we discern no abuse of discretion in the court’s
exclusion of the photographs.
F. Jury Instructions
¶ 96 Harris contends that the trial court erroneously rejected her
tendered jury instructions defining various terms in the cruelty to
animals statute and left the terms undefined. She insists that by
failing to define the terms “needlessly killed,” “proper protection
from weather conditions,” “proper drink,” “proper food,” and
45
“necessary sustenance,” the jury was left to define its own standard
of care for the animals.14
¶ 97 It is within the sound discretion of the trial court to determine
whether additional jury instructions that properly state the law
should be submitted. People v. Esparza-Treto, 282 P.3d 471, 480
(Colo. App. 2011).
¶ 98 When a term, word, or phrase in a jury instruction is one with
which reasonable persons of common intelligence would be familiar,
and its meaning is not so technical or mysterious as to create
confusion in jurors’ minds as to its meaning, an instruction
defining it is not required. People v. Thoro Prods. Co., 45 P.3d 737,
745 (Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo. 2003).
¶ 99 Here, all of the undefined terms are common words the jury
was capable of understanding, and there is no indication that the
jury was confused by these terms. See People v. Allen, 657 P.2d
447, 451 (Colo. 1983) (“[T]he language of the cruelty to animals
statute may be readily comprehended and applied by jurors.”).
14While Harris contends that the trial court erroneously failed to
instruct the jury on the definition of “otherwise mistreated,” the
court did instruct the jury on the statutory definition of
mistreatment.
46
Thus, the court acted within its broad discretion when it declined to
define these terms further. See Esparza-Treto, 282 P.3d at 480
(“When a jury indicates no confusion about the meaning of such
common phrases, the trial court’s failure to define such phrases
specifically does not require a new trial.”).
V. Conclusion
¶ 100 The convictions and sentences are affirmed.
JUDGE DAILEY and JUDGE FURMAN concur.
47