State v. E.M.R.

• Citation: 292 P.3d 451,368 Mont. 179
• Decision Date: 08 January 2013
• Docket Number: No. DA 11–0627.,DA 11–0627.
• Parties: STATE of Montana, Plaintiff and Appellee, v. E.M.R., Defendant and Appellant.
• Court: Montana Supreme Court

368 Mont. 179

292 P.3d 451

STATE of Montana, Plaintiff and Appellee,

v.E.M.R., Defendant and Appellant.

No. DA 11–0627.

Supreme Court of Montana.

Submitted on Briefs Nov. 14, 2012.

Decided Jan. 8, 2013.

For Appellant: Nancy G. Schwartz; NG Schwartz Law, PLLC; Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney; Katie Jerstad, Melissa Broch, Deputy County Attorneys; Helena, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[368 Mont. 180]¶ 1 After a four-day trial in August 2011, a Lewis and Clark County jury found that E.M.R., a youth under the age of eighteen, had committed five misdemeanor offenses of “dog at large,” in violation of County Ordinance # 4–2006–13, and one felony offense of aggravated animal cruelty, in violation of § 45 –8 –217(2), MCA. E.M.R. appeals from the dispositional order entered by the First Judicial District Youth Court. We affirm in part, reverse in part and remand for further proceedings.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the Youth Court abuse its discretion when it instructed a deadlocked jury on the legislative purpose of the Youth Court Act by reading the jury § 41–5–102, MCA?

¶ 4 2. Did the Youth Court err by denying E.M.R.'s motion to dismiss the five “dog at large” offenses based on an erroneous statutory reference in the amended charging documents?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 E.M.R. grew up in the Scratchgravel Hills near Helena, Montana, with her mother and father. E.M.R.'s mother was a hoarder who, in addition to collecting large amounts of “junk,” collected animals, including numerous goats, dogs, horses, and cats. In November 2010, when E.M.R. was seventeen years old, her mother died. Although E.M.R. was living in Carter, Montana, at the time, her father told Sue Cecrle, an animal control officer for Lewis and Clark County, that the animals belonged to E.M.R. and that she was responsible for them. E.M.R. asked her father, who was in his mid-seventies, to feed and water the animals when she was out of town and her father testified that he did so “twice a day every day.”

¶ 6 Despite that arrangement, neighbors grew concerned about the welfare of E.M.R.'s animals and they reported those concerns to law enforcement. Cecrle responded by visiting the property and speaking with E.M.R.'s father about either taking better care of the animals or finding them new homes. E.M.R. and her father agreed to surrender seven dogs and four goats and to work on finding suitable homes for many of the remaining animals.

¶ 7 Neighbors continued to voice their concerns to animal control that E.M.R.'s father physically was not able to feed and water the remaining animals, especially when the weather turned cold and icy. In December of 2010, Cecrle returned to the property with a veterinarian to evaluate the condition of the horses. Cecrle and the veterinarian informed E.M.R. that she needed to keep water and hay in front of the horses at all times, de-worm them and trim their hooves within the week. E.M.R. failed to trim the horses' hooves; instead, she decided to give away many of the animals. In late December, Cecrle verified that the only animals E.M.R. still possessed were four horses and various dogs.

¶ 8 In February 2011, Cecrle again visited the property in response to reports that E.M.R. had acquired additional animals. She viewed at least five new horses before E.M.R. asked Cecrle to leave unless she had a warrant. That next month, Cecrle responded to complaints that E.M.R.'s newly-acquired puppies were running freely around the neighborhood. Cecrle impounded four puppies and took them to the humane society and E.M.R. claimed them the next day. One week later, another one of E.M.R.'s puppies escaped, was hit by a car, and suffered a broken leg.

¶ 9 In response to continued complaints about escaped dogs and malnourished horses, Cecrle obtained and executed a search warrant on the property in mid-March. She and other officers found several recently-born puppies and numerous dogs, some of which were caged or chained without access to food or water. They also found several dogs that had died—four dogs were found decomposing in a pile of sawdust and another dog, whose existence apparently was unknown to E.M.R. or her father, was found suffocated by a chain that was deeply embedded into the dog's neck. Cecrle also examined the ten horses found on the property. She later testified that they “weren't in bad condition” but were “a little on the lean side” and their hooves had not been trimmed. Cecrle also testified that the horses did not have any access to food or water on the day the warrant was executed.

¶ 10 Based on the foregoing, a Lewis and Clark County Sheriff's deputy issued a citation to E.M.R. for cruelty to animals in violation of § 45–8–211(b) and (d), MCA, and referred her to the Youth Court for further proceedings. One month later, the Lewis and Clark County Attorney filed a petition charging E.M.R. with being a delinquent youth for having committed two counts of animal cruelty, a misdemeanor, in violation of § 45–8–211(1)(b) and (d), MCA, respectively, as wells as two counts of aggravated animal cruelty, a felony, in violation of § 45–8–217(2), MCA.¹ In June 2011, the county attorney filed an amended petition further charging E.M.R. with having committed five offenses of “dog at large,” a misdemeanor, “in violation of Montana Code Ann. § 4–2006–13.” In the supplemental affidavit filed simultaneously, the county attorney noted that E.M.R. was being charged with “five counts of dog at large, a misdemeanor, in violation of Lewis and Clark County Ordinance § 4–2006–13.” (Emphasis added.) The State later filed a second amended petition, which also erroneously stated that E.M.R. was being charged with violating § 4–2006–13, MCA.

¶ 11 The Youth Court held a jury trial in August 2011. At the close of the State's case, E.M.R.'s attorney requested that the counts of “dog at large” in violation of § 4–2006–13, MCA, be dismissed because that “statute does not exist.” The State explained that the citation to the Montana Code Annotated was a typographical error and that the petition should have cited to the county ordinance. The court denied the motion because “the number [was] correct” and because E.M.R.'s attorney could not make “any real serious contention here that you didn't have notice of what [E.M.R.] was charged with factually and that you haven't been able to defend based on what [E.M.R.] was charged with.”

¶ 12 During deliberations, the jury became deadlocked on the animal cruelty charges, reporting to the court that one juror was “unwilling to consider views contrary to his own” and therefore the jury was hung. The jury foreman informed the court that “progress cannot be made under the present circumstances” and asked if the juror could be substituted with an alternate. The court conferred with counsel for E.M.R. and the State and decided to read the jury an instruction consistent with Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The parties agreed to that instruction and it is not at issue on appeal.

¶ 13 The State also suggested that “maybe some of the problems within the jury stem from a lack of understanding about youth court” and asked the court to read the “Proposed State's Instruction No. 22.” That instruction quoted the legislative purpose of the Youth Court Act as codified in § 41–5–102, MCA. E.M.R.'s attorney objected to the instruction because “the jury is the trier of fact” and an instruction on the “purpose of the Youth Court Act ... doesn't assist them in deciding the issues of fact.” Even though the Youth Court previously had refused to give the proposed instruction, the court agreed to do so after the jury appeared to be deadlocked.

¶ 14 After receiving the additional instructions, the jury continued to deliberate for several hours. Ultimately, the jury returned a verdict finding that E.M.R. had committed the offense of dog at large on Counts I–V on the verdict form and the offense of aggravated animal cruelty on Count IX. The jury found that E.M.R. had not committed one count of animal cruelty and was unable to reach a verdict on the remaining two animal cruelty charges.

¶ 15 E.M.R. appeals the Youth Court's denial of her motion to dismiss as well as the court's decision to instruct the jury on the legislative purpose of the Youth Court Act.

STANDARD OF REVIEW

¶ 16 District courts have “broad discretion” when instructing the jury in a criminal case and we review jury instructions “for an abuse of discretion.” State v. Hocter, 2011 MT 251, ¶ 14, 362 Mont. 215, 262 P.3d 1089. A court abused its discretion if it “acted arbitrarily or exceeded the bounds of reason resulting in substantial injustice.” State v. Dewitz, 2009 MT 202, ¶ 66, 351 Mont. 182, 212 P.3d 1040 (citing State v. Cybulski, 2009 MT 70, ¶ 34, 349 Mont. 429, 204 P.3d 7). To constitute reversible error, jury instructions “must prejudicially affect the defendant's substantial rights.” State v. Christiansen, 2010 MT 197, ¶ 7, 357 Mont. 379, 239 P.3d 949. We apply the same principles to proceedings held in youth court. See In re T.J.B., 2010 MT 116, ¶ 16, 356 Mont. 342, 233 P.3d 341.

¶ 17 The denial of a motion to dismiss a petition in Youth Court is a question of law, which we review de novo “to determine whether the court correctly interpreted the law.” In re G.T.M., 2009 MT 443, ¶ 9, 354 Mont. 197, 222 P.3d 626 (citing In re R.L.H., 2005 MT 177, ¶ 15, 327 Mont. 520, 116 P.3d 791).

DISCUSSION

¶ 18 1. Did the Youth Court abuse its discretion when it instructed a deadlocked jury on the legislative purpose of the Youth Court Act by reading the jury § 41–5–102, MCA?

[368 Mont. 184]¶ 19 After the jury indicated that it was deadlocked, the court instructed the jury to consider the legislative...