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State v. Gerard

Court of Appeals of Minnesota

June 24, 2013

State of Minnesota, Appellant,
v.
Mark Duane Gerard, Respondent.

Chisago County District Court File No. 13-CR-12-584

Lori Swanson, Attorney General, St. Paul, Minnesota; and Janet Reiter, Chisago County Attorney, Beth A. Beaman, Center City, Minnesota (for appellant)

D. Sherwood McKinnis, Lindberg & McKinnis, P.A., Cambridge, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Stoneburner, Judge; and Rodenberg, Judge.

SYLLABUS

A determination of whether a person "unjustifiably" injured, maimed, mutilated, or killed an animal pursuant to Minn. Stat. § 343.21, subd. 1 (2010), is a fact issue for the jury.

OPINION

CONNOLLY, Judge

In this pretrial appeal, appellant, State of Minnesota, argues that the district court erred when it dismissed the felony count of unjustifiably killing an animal, in violation of Minn. Stat. § 343.21, subd. 1, based on lack of probable cause because it impermissibly concluded that respondent's actions were justified. Because a determination of whether an animal was killed "unjustifiably" pursuant to Minn. Stat. § 343.21, subd. 1 is a fact issue for the jury, we reverse and remand.

FACTS

On June 25, 2012, a deputy from the Chisago County Sheriff's Office responded to a residence on an animal-cruelty complaint after a cat was shot. When the deputy arrived, he spoke with the complainants, T.H. and M.H., the cat's owners. T.H. was holding a white cat that was wearing a dark collar with a bell on it. The cat appeared to have been shot with a shotgun. The cat was alive, but had extensive wounds. T.H. and M.H. asked the deputy to put the cat down because it was suffering and would not survive. The deputy agreed and dispatched the cat with his service weapon.

M.H. told the deputy that their cat had been shot by their neighbor, respondent Mark Duane Gerard. M.H. stated that he had been outside and had heard a shot and observed a plume of smoke from respondent's yard. M.H. told the deputy that they had had problems with respondent in the past and asked the deputy to go speak with respondent.

Respondent admitted to the deputy that he shot the cat. He told the deputy that he had seen the cat on his property numerous times, that he observed the cat killing wild baby turkeys on his property the day before, and that the cat had once killed one of his chickens, though he admitted that he did not actually see the cat kill his chicken. The deputy observed a chicken coop on respondent's property, but did not observe any dead chickens or turkeys. Respondent indicated that he did not know whose cat he had shot and that he had not observed a collar.

Respondent was charged with one count of mistreating animals, in violation of Minn. Stat. § 343.21, subd. 1. Because respondent's actions resulted in the death of a pet or companion animal, the charge was a felony pursuant to Minn. Stat. § 343.21, subd. 9(d) (2010). Respondent filed a motion to dismiss for lack of probable cause, arguing that there was no evidence presented that his actions were unjustified. Respondent's motion was accompanied by a notarized affidavit from the deputy that included a statement that the deputy was "of the opinion that [respondent's] actions, resulting in the shooting of the white cat, on June 25, 2012, were justified."

At the probable-cause hearing, respondent argued that there was no evidence that the shooting was unjustified. The state argued that justification of respondent's actions is an issue for the finder of fact at trial. Following the hearing, the district court dismissed the complaint for lack of probable cause, finding insufficient evidence that ...


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