STATE OF MISSOURI, Rеspondent, v. JUDY INES COCHRAN, Appellant.
WD73766
Missouri Court of Appeals Western District
May 1, 2012
366 S.W.3d 609
Appeal from the Circuit Court of Boone County, Missouri. The Honorable Mary (Jodie) Capshaw Asel, Judge.
Judy Ines Cochran appeals her conviction, after a jury trial, from the Circuit Court of Boone County of the misdemeanor of animal abuse,
Factual Background2
On January 15, 2009, Judy Ines Cochran (Cochran) was visited at her home in Boone County by animal control officer Dеborah 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.
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 оver 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
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,
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 testimоny 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 conduсt 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 respondеd 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. 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 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 еxercise 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 (Mo.App.2000).If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious, and clear. Id. As in the case of our review for regular error, not every evident, obvious, and clear error found mandates reversal. Carr, 50 S.W.3d at 853. In the case of regular error, to be reversible, the error found must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo.App.2002). Likewise, in the case of plain error, the error found must have prejudiced a substantial right of the appellant, except that such prejudice must rise to the level of manifest injustice or a miscarriage of justice. State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002). Thus, even if evident, obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Hibler, 21 S.W.3d at 96.
State v. Beck, 167 S.W.3d 767, 772 (Mo. App. W.D. 2005).
The general purpose of expert testimony is to aid the jury in areas that are outside the everyday experience of the layperson. State v. Pickens, 332 S.W.3d 303, 321 (Mo. App. E.D. 2011) (citing State v. Harris, 305 S.W.3d 482, 490-91 (Mo. App. E.D. 2010)). It is well established that expert testimony is admissible if it is clear that the subject of such testimony is one upon which the jurors, for want of experience or knowledge, would otherwise be incapable of drawing a proper conclusion from the facts in evidence. State v. Gray, 347 S.W.3d 490, 504 (Mo. App. E.D. 2011) (quoting State v. Haslett, 283 S.W.3d 769, 779 (Mo. App. S.D. 2009)). Experts may testify to ultimate issues in a case so long as it aids the jury and does not invade its province. Id. (citing Haslett, 283 S.W.3d at 779). Missouri courts have identified a number of instances in which expert testimony does invade the province of the jury. For example, experts are not allowed to testify as to the veracity of other witnesses. See Haslett, 283 S.W.3d at 779; State v. Link, 25 S.W.3d 136, 143 (Mo. banc 2000). Experts are not allowed to testify regarding the guilt or innocence of the defendant as it usurps the decision-making function of the jury. Haslett, 283 S.W.3d at 779; Gray, 347 S.W.3d at 504. An expert may not substitute his reasoning and conclusions for the reasoning and conclusions of the jury upon the issue, or issues, before the triers of fact. Pickens, 332 S.W.3d at 322 (quoting Deiner v. Sutermeister, 266 Mo. 505, 178 S.W. 757, 761 (1915)). For example, an expert is allowed to give testimony regarding whether the defendant had the ability to deliberate, but he is not allowed to give testimony regarding whether the defendant actually deliberated. Id. (citing State v. Clements, 789 S.W.2d 101, 110-11 (Mo. App. S.D. 1990)).
As pertinent to this case,
The subject matter of Rold‘s testimony centered on the adequate care of animals and how he, as an expert, determines whether adequate care is being given to animals with respect to an animal‘s uniquе characteristics. Rold properly testified that dogs need water in cold temperatures because there is less moisture in the air and they lose more water, and he testified that cold increases the metabolism of animals and therefore requires more food and water. Rold could have properly testified that assuming the conditions were as described that adequate care was not provided these animals; however, this was not the question that was asked. The State asked Rold whether animal abuse had occurred in this case. While we understand that animal abuse could be shorthand for the failure to provide adequate care for an animal, here Cochran was charged with violating
To the extent that the testimony in this case could be interpreted that Rold was testifying that Cochran knowingly failed to provide adequate care to these animals, it would have exceeded his expertise and invaded the province of the jury. The court should never admit the opinion of an expert witness unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. Pickens, 332 S.W.3d at 321 (quoting State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984)). The state of mind of a defendant is clearly within the jury‘s competence. See Clements, 789 S.W.2d at 110-11 (whether defendant deliberated is within the province of the jury); State v. Powell, 286 S.W.3d 843, 850 (Mo. App. W.D. 2009); State v. Jones, 134 S.W.3d 706, 717 (Mo. App. S.D. 2004). Again, we reiterate, experts may testify to ultimate issues so long as it aids the jury and does not invade its province. Gray, 347 S.W.3d at 504. Rold could have testified to the ultimate issue that the care provided to these animals was not adequate
However, there is nothing in the record to suggest that it was Rold‘s intent to give an opinion as to Cochran‘s state of mind and neither side argued that his testimony intended to encompass such a broad reach. The record shows that these questions were inartfully phrased. It is clear to us that the intent behind the questions and Rold‘s responses thereto were to show the jury that these animals received inadequate care, which was a proper subject of Rold‘s expertise, and was not meant as a final word on whether Cochran committed animal abuse per
In plain error review, in addition to a showing of error, Cochran must also show that the trial court‘s error so substantially violated [her] rights that manifest injustice or a miscarriage of justice results if the error is not corrected. State v. Cole, 71 S.W.3d 163 (Mo. banc 2002) (quoting State v. Clayton, 995 S.W.2d 468, 478 (Mo. banc 1999)). Cochran has failed to make such a showing here. The plain error rule is to be used sparingly. State v. Gaines, 342 S.W.3d 390, 398 (Mo. App. W.D. 2011) (quoting State v. Steele, 314 S.W.3d 845, 854 (Mo. App. W.D. 2010)). Plain error review must be considered case by case to determine whether there was a sound, substantial manifestation, a strong, clear showing, that injustice or a miscarriage of justice resulted. Id. (quoting Steele, 314 S.W.3d at 854). Under a plain error analysis, a manifest injustice is shown where the trial court‘s error in admitting the evidence was outcome determinative. Id. (quoting State v. Jones, 299 S.W.3d 324, 328 (Mo. App. W.D. 2009)).
Cochran has failed to show how this error was outcome determinative. The evidence at trial was clear. Christoff and Hall testified that, in response to a complaint, they made a surprise visit to Cochran‘s home where they observed various conditions not suitable to the adequate care of animals. The evidence showed that: (1) Fifi a small white miniature poodle dog was observed outside in the cold; (2) Fifi, along with other outdoor dogs, did not have ready access to water; (3) there were no food bоwls in the yard where Fifi was kept; (4) the shelter for the dogs was open to the elements; (5) the dogs did not have adequate straw on which to sleep but slept on the bare ground; (6) the yard was cluttered with various hazards potentially
Point One is denied.6
In Point Two, Cochran argues the trial court erred in overruling her motion for judgment of acquittal and accepting the jury‘s verdict of guilty as to Count II because the State failed to prove beyond a reasonable doubt that Cochran was guilty of every element of the offense in that the State failed to adduce proper evidence of the provisions of county health regulation 2.4.3 by failing to introduce the ordinance into evidence.7
Whеn an appellant challenges the sufficiency of the evidence to support her conviction, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998) (quoting State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993)). Applying this standard, this Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary. Id. (quoting Grim, 854 S.W.2d at 405).
In Count II, the State charged and prosecuted Cochran for violating
[i]n the trial of municipal ordinance violation cases, a copy of a municipal ordinance which is certified by the clerk of the municipality shall constitute prima facie evidence of such ordinance. If such certified copy is on file with the clerk serving the judge hearing a case and readily available for inspection by the parties, the judge may take judicial notice of such ordinance without further рroof.
It is well settled that
[a] valid municipal prosecution requires, at a bare minimum, proof of the ordinance upon which the conviction rests, either by formal presentation or by stipulation. City of Boonville v. Martin, 694 S.W.2d 295, 296 (Mo.App. W.D.1985). Moreover, municipal enactments are not subject to judicial notice by trial or appellate courts. Id. Absent proof of the existence and content of the ordinance defining the offense for which appellant was charged ..., the conviction cannot stand. State v. Furne, 642 S.W.2d 614, 616 (Mo.banc 1982).
St. Louis County v. Afshari, 938 S.W.2d 303, 304-05 (Mo. App. E.D. 1997) (page numbers omitted); see also City of Joplin v. Marston, 346 S.W.3d 340, 342 (Mo. App. S.D. 2011).
At trial, Christoff testified that the law and Boone County health regulatiоns require animals in the county to have rabies vaccinations prior to three months of age. However, the law is clear that ordinances upon which a conviction rests must be entered into evidence by formal presentation or by stipulation. City of Boonville, 694 S.W.2d at 296; see also City of Clarkton v. Manes, 140 S.W.3d 297, 301 (Mo. App. S.D. 2004). This is because the applicable ordinance is an essential element of proof. City of University City v. MAJ Investment Corp., 884 S.W.2d 306, 307 (Mo. App. E.D. 1994) (citing City of Kansas City v. Baker, 793 S.W.2d 646, 648 (Mo. App. W.D. 1990)). Although formal presentation is undefined it has been interpreted to reasonably include live testimony of the person who can authenticate the document. City of Clarkton, 140 S.W.3d at 301. Absent that рroof, the existence and terms of the ordinance are not known, the offense remains undefined, and no misconduct can be shown nor any conviction proven. Id. (citing Furne, 642 S.W.2d at 616). Health regulation 2.4.3 was not presented to the trial court in any manner whatsoever apart from general references through the testimony of Christoff. Accordingly, Cochran‘s conviction of a violation of
Further, where the error was the failure of the prosecution to present evidence available to it at the first trial, a second trial оn those charges is barred by the principles of double jeopardy. Afshari, 938 S.W. 2d at 305. [T]he purposes of the Clause would be negated were we to afford the [state] an opportunity for the proverbial ‘second bite at the apple’ and, therefore, a judgment of acquittal is the proper remedy. Furne, 642 S.W.2d at 617 (quoting Burks v. United States, 437 U.S. 1, 17 (1978)). Pursuant to
Point Two is granted and the conviction of Cochran under Count II and the sentence therefore, is vacated.
Conclusion
The Judgment of the Circuit Court of Boone County is affirmed in part and reversed in part.
Gary D. Witt, Judge
All concur