State v. Cochran

• Decision Date: 01 May 2012
• Docket Number: No. WD 73766.,WD 73766.
• Parties: STATE of Missouri, Respondent, v. Judy Ines COCHRAN, Appellant.
• Court: Missouri Court of Appeals

365 S.W.3d 628

STATE of Missouri, Respondent,
v.
Judy Ines COCHRAN, Appellant.

No. WD 73766.

Missouri Court of Appeals,
Western District.

May 1, 2012.

[365 S.W.3d 630]

Rose L. Olson and Ryan F. Haigh, Columbia, MO, for respondent.

Rosalynn Koch, Columbia, MO, for appellant.

Before Division Two: KAREN KING MITCHELL, Presiding Judge, MARK D. PFEIFFER, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

Judy Ines Cochran appeals her conviction, after a jury trial, from the Circuit Court of Boone County of the misdemeanor of animal abuse, section 578.012,¹ and of a violation of a county ordinance for failure to vaccinate, section 192.300. We affirm in part and reverse in part.

Factual Background²

On January 15, 2009, Judy Ines Cochran (“Cochran”) was visited at her home in Boone County by animal control officer Deborah Christoff (“Christoff”) and Matt Rold (“Rold”) of the Department of Agriculture. During that visit, Cochran had eighteen dogs on her property. Christoff and Rold discussed with Cochran the needs of the dogs with respect to shelter, water, and adequate food, and they also discussed with her regulations governing breeding facilities. Further, they discussed with Cochran Boone County's requirement concerning the vaccination for rabies of all dogs by the age of three months. Following the visit, Christoff was able to verify that Cochran had subsequently complied with the regulation and had her dogs vaccinated.

In response to a call, Christoff visited Cochran a second time at Cochran's home on December 15, 2009 around 12:30 p.m.

[365 S.W.3d 631]

with animal health investigator Dawn Hall (“Hall”) from the Department of Agriculture. Christoff and Hall knocked on the door to Cochran's home and waited for a response. Cochran eventually answered the door and Christoff explained the reason for their visit. Cochran insisted nothing was wrong but asked them to wait at the door while she put on her shoes and coat. After waiting for quite some time, Hall and Christoff knocked again and heard Cochran calling to them from the back yard. Cochran was in the backyard with a bucket of water, knocking ice out of dog dishes and filling them with water. She also appeared to be knocking feces through the wire bottom of the dog pen. Christoff observed five dogs in the yard and six in the pen. There were no food bowls in the yard. The yard was covered with scraps of wood, nails, cinder blocks, loose wire and other debris.

The outside temperature at the time of Christoff and Hall's visit was around twenty-four degrees. Christoff asked Cochran about the shelter provided to the dogs and Cochran stated the dogs could get in a trailer located in her yard and that she placed them in there at night. Christoff observed that the doors to the trailer were either boarded up or blocked so that the dogs did not have access. Cochran also stated that the dogs could get under a trampoline for shelter. One dog, Fifi, a miniature poodle, was located outside shivering, had matted hair so that her skin was showing, and felt cold to the touch. The charge against Cochran under Count I was based on the treatment of Fifi and not the other dogs present. Fifi was placed into a pen while Christoff and Hall were present and Fifi proceeded to eat for quite a while.

The “inside” dogs were in a trailer, which had holes in the sides and ceiling that allowed the wind to blow through. The trailer was unheated and had runs going to the outside, the bottoms of which were not insulated or covered. Feces were hanging from the runs and the structural integrity of the trailer as a whole was suspect. There was straw inside the dog pens but Christoff testified it was insufficient to provide the dogs cover for warmth.

Christoff received a list of all the dogs owned by Cochran that had been vaccinated by Cochran's veterinarian. A dog named Boss was present at the home but was not on that list. The charge against Cochran under Count II was based on the failure to vaccinate Boss and not the other dogs present. Cochran claimed Boss did not need a vaccination as he was only five months old. After Christoff informed her that dogs over the age of three months must be vaccinated, Cochran claimed that she was referring to another dog, and then argued that Boss was her daughter's dog. Cochran later claimed that someone had abandoned Boss at her house. Cochran admitted that Boss had been there for more than thirty days.

Cochran was charged with animal abuse for the treatment of Fifi, a violation of section 578.012, and with a county ordinance violation for failure to vaccinate Boss, under section 192.300. The day before trial, the State endorsed Matt Rold (“Rold”) as an expert witness. Rold had been previously endorsed as a witness as he had visited Cochran's property in January 2009, but was not designated as an expert until the day before trial. The defense objected to the late endorsement, which the trial court overruled. The Court then asked both the prosecutor and defense counsel whether they would be ready to try the case the following day. They both agreed. On the morning of trial, Cochran again objected to the late endorsement of Rold as an expert. The trial court offered Cochran a continuance,

[365 S.W.3d 632]

which she declined. At trial, Cochran renewed her objection to Rold's testimony as an expert witness, arguing his opinion was not a proper subject for expert testimony.

Rold, supervisor of the Animal Care Facilities Act program for the Department of Agriculture, testified to a number of matters, including what constitutes adequate care of animals. Rold also testified that in his expert opinion, animal abuse did occur in this case.

After the State rested, Cochran filed a motion for judgment of acquittal, which was denied. Cochran also presented evidence through the testimony of nine witnesses. At the close of the evidence, Cochran filed a motion for judgment of acquittal, which was denied by the court.

The jury found Cochran guilty on both the count of misdemeanor animal abuse, section 578.012, and the count charging her with a violation of a county ordinance for failure to vaccinate, section 192.300. The court sentenced Cochran to thirty days imprisonment for animal abuse, suspending the execution of that sentence, and placing Cochran on two years of probation. The court also imposed a $100 fine for the county ordinance violation. Cochran now appeals. More factual details will be provided in the analysis section as necessary.

Analysis

In Point One, Cochran argues the trial court erred and abused its discretion in permitting Rold to testify, over Cochran's objection, that her actions were “animal abuse” in that the testimony was a legal conclusion that the jury was equally able to decide upon from the evidence presented and invaded the province of the finder of fact on the ultimate issue in the charged offense. ³

The State argues that Cochran failed to preserve this objection by failing to raise it at trial. Cochran argues she preserved her objection when she objected at trial and claimed that Rold's testimony should be excluded because (1) it would be confusing to the jury because Rold is now an inspector of breeder facilities and Cochran was not charged as a breeder; (2) Rold's testimony is unnecessary with regards to adequate care of a pet as that knowledge is within the general knowledge of the jury; (3) Rold should be excluded as a witness due to the State's late disclosure of him as an expert witness. All of these arguments have been abandoned by Cochran on appeal and none is the basis upon which Cochran now argues as to the admissibility of Rold's testimony. Cochran's point on appeal solely challenges the specific testimony of Rold concerning the issue of whether the conduct in this case constituted animal abuse. The State asked Rold, “[a]nd did you reach an opinion to a reasonable degree of certainty in your area of expertise as to whether there was animal abuse in this case?” Rold responded in the affirmative. The State then asked what that opinion was to which Rold responded, “I would consider that abuse.” No objection was made by Cochran to this testimony. The State again asked essentially the same question of Rold after further questioning, and Rold again responded that he did find that there was animal abuse in this case. Cochran again failed to object.

“To properly preserve a challenge to the admission of evidence, the objecting party must make a specific objection to the evidence at the time of its attempted admission.”

[365 S.W.3d 633]

State v. Mickle, 164 S.W.3d 33, 55 (Mo.App. W.D.2005) (citing State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992)). Failure to object and failure to include the error in a motion for a new trial waives the claim of error and it can only be reviewed under plain error review pursuant to Rule 30.20.⁴See Rule 29.11(d); State v. Uptegrove, 330 S.W.3d 586, 592 (Mo.App. W.D.2011). Therefore, the claim of error Cochran raises before this Court has been waived and can only be reviewed for plain error.

Rule 30.20 provides, in pertinent part, that “[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom.” The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo.App.2001). In determining whether to exercise our discretion to grant plain error review, we look to determine whether on the face of the appellant's claim substantial grounds exist for believing that the trial court committed error that is evident, obvious, and clear, affecting a substantial right of the defendant, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001); State v. Hibler, 21 S.W.3d 87, 96...