This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed August 22, 2000
Clay County District Court
File No. T5991283
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Brian J. Melton, Assistant Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)
Todd W. Foss, Dennis D. Fisher, pro hac vice, Stefanson, Plambeck & Foss, 403 Center Avenue, Suite 302, P.O. Box 1287, Moorhead, MN 56561 (for appellant)
Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.*
Appellant Russel Crume challenges his conviction of mistreating animals by torture or neglect in violation of Minn. Stat. § 343.21, subd. 1 (1998), and the sentence imposed by the trial court. We affirm.
Crume has been the proprietor of Boardwalk Kennels since 1990. At trial, Crume testified that in late August 1998, he noticed that the dogs in one section of his kennel were refusing food, but he did not immediately associate the refusal with a lack of water. He claimed that someone had turned off the shutoff valve for the part of the automatic watering system that provided water to 12 pens in the kennel. By the time he discovered the cause of the problem, it was too late to save all but two of the affected animals. He also testified that he had been suffering from depression for three years, and the loss of the dogs caused him to become further depressed. He was overwhelmed by the loss of the animals and could not face the task of burying them or even entering the section of the kennel where their bodies lay, although he did dig a grave. On the evening of October 2, 1998, after the dead dogs had been discovered, Crume’s father helped him bury the bodies.
At the time of the incident, Crume was married to Brenda Shafer-Crume. During their marriage, the kennel had not been a financial success, but it had required Crume’s almost constant presence, which put stress on the marriage. Shafer-Crume had always been restricted from entering the kennel, but she took a key from Crume’s pocket once in 1997 and walked through the kennel. She found the floors covered with feces and filth. Shafer-Crume testified that she had seen as many as 104 dogs in the kennel at one time during 1997. By October 2, 1998, Shafer-Crume had decided to divorce Crume. On that evening, she decided to look at the kennel, which she had not seen since 1997. In one section of the kennel, she found the decayed carcasses of 10-15 dogs. She asked her sister to view the remains and took photographs. On the advice of her attorney, she gave the photographs to the Clay County Sheriff’s Department.
On October 22, 1998, Clay County Deputy Sheriff Detective Ryan Alderman executed a search warrant at the kennel. Dr. Merril Reinhiller, a veterinarian, accompanied him. Alderman testified that the carcasses had been removed, and the kennel appeared to be clean with approximately 40 dogs present. Reinhiller did not perform a postmortem examination of the carcasses, but he testified that the photographs indicated severe neglect and that it appeared the dogs had received no care.
Crume was charged with four counts of mistreatment of animals in violation of Minn. Stat. § 343.21 (1998). Count I alleged mistreatment by torture or neglect, in violation of Minn. Stat. § 343.21, subd. 1. Count II alleged mistreatment by deprivation, in violation of Minn. Stat. § 343.21, subd. 2. Count III alleged mistreatment by abandonment, in violation of Minn. Stat. 343.21, subd. 5. Count IV alleged mistreatment by cruelty, in violation of Minn. Stat. § 343.21, subd. 7. Following a jury trial, Crume was acquitted of three counts and found guilty on count I. He was sentenced to 90 days in jail, with 45 days stayed for one year, and ordered to pay a fine of $700, plus costs. Conditions of the stay prohibited him from operating the kennel and having more than four animals in his care and permitted unannounced inspections of the kennel by law-enforcement authorities.
1. Crume argues that the trial court abused its discretion by denying his motion under Minn. R. Evid. 403 to bar the use of the photographs of the dog carcasses and remains. Crume contends that the photographs had only unfair prejudicial effect that outweighed any probative value, particularly where he agreed to stipulate that “some dogs died.”
Photographs are admissible as competent evidence if they accurately “show something that a witness could describe and are material to some relevant issue” and “allow the jury to better visualize the crime scene.” State v. Hummel, 483 N.W.2d 68, 74 (Minn. 1992). The admission of photographs is a matter within the trial court’s discretion and will not be reversed absent of an abuse of discretion. State v. Friend, 493 N.W.2d 540, 544 (Minn. 1992). Evidence may be excluded if the danger of unfair prejudice substantially outweighs its probative value. Minn. R. Evid. 403.
“[I]n Rule 403, ‘prejudice’ does not mean the damage to the opponent’s case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.”
Evidence does not violate rule 403 merely because it is highly damaging to the other side’s case. To the contrary, such evidence is admissible when it is highly probative.
State v. Ferguson, 581 N.W.2d 824, 834 (Minn. 1998) (quoting State v. Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985) (citation omitted)).
Crume argues that the photographs do not tell the jury anything about how the animals died or whether they were tortured or neglected. But food or water dishes can be seen in only two of the 15 pens photographed. Shafer-Crume and other witnesses described the carcasses and the state of the kennel, but the photographs allowed the jury to better visualize the scene.
Citing Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644 (1997), Crume argues that his offer to stipulate that the dogs died should have barred admission of the photographs. We disagree. The stipulation in Old Chief is significantly different from the stipulation offered by Crume. Old Chief involved a stipulation to a prior conviction in a prosecution of a case of felon in possession of a firearm. A critical factor in the Old Chief court’s determination that the stipulation made underlying evidence regarding the conviction inadmissible was that “the fact of the qualifying conviction is alone what matters under the statute.” Id. at 190, 117 S. Ct. at 655. Unlike the statute in Old Chief, the statute that Crume was convicted of violating did not require the state to prove only that dogs died. The state was also required to prove that Crume’s acts caused or permitted the deaths. Minn. Stat. § 343.20, subd. 3 (1998). Crume’s stipulation that “some dogs died” did not provide an adequate basis for the jury to determine that Crume caused the deaths.
The photographs were highly probative in showing the circumstances under which the dogs died. The trial court did not abuse its discretion by admitting the photographs because the danger of unfair prejudice did not substantially outweigh the photographs’ probative value.
2. Crume argues that the trial court abused its discretion by not permitting him to call one or more of the mental-health professionals who treated him to testify about the history of his mental-health condition. He contends that this evidence would have assisted the jury in understanding the “whole person” and that by barring the state-of-mind evidence, the court denied his right to present his defense.
“[T]he trial court has broad discretion in deciding whether testimony by a qualified expert should be received.” State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980). The trial court’s decision will not be reversed except for clear error. State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995).
Psychiatric opinion testimony, in any event, should not be allowed to show diminished capacity or diminished responsibility. The role of the court and jury is to determine whether the facts of a particular case fit the crime as defined by the legislature.
State v. Provost, 490 N.W.2d 93, 100 (Minn. 1992).
During an in-chambers conference with counsel during trial, the court stated,
There’s no mental defense on this particular case and if you plan to argue a mental defense in this particular case, you better have some case law to support it, because there’s going to be no instruction about it. This is not a M’Naghten type situation and so if you’re going to argue it Mr. Fisher, you better have some case law to support you because if you argue it and you don’t, I won’t let you. You need to have something to show me if you’re going to present that.
Crume’s counsel replied, “I was thinking more state of mind, Judge. The defendant can talk about his state of mind.” The trial court permitted Crume to testify about his deteriorating marriage, his depression, his treatment, and counseling, and members of his family testified about his state of mind before the incident.
The trial court did not allow Crume to call any of the mental-health professionals who treated him. Crume did not make an offer of proof, which might have permitted the trial court to determine whether the testimony he wished to present was something other than evidence of diminished capacity. Absent any basis for the trial court to conclude that the expert testimony was anything other than evidence of diminished capacity, we conclude that the trial court did not abuse its discretion by refusing to allow Crume to present the additional state-of-mind evidence.
3. Crume argues that it was plain error for the trial court to fail to instruct the jury on the law of culpable negligence as an element of the offense charged. The refusal to give a requested jury instruction lies within the trial court’s discretion and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The trial court is allowed considerable latitude in choosing the language to be included in jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990). This court views a jury instruction in its entirety to determine whether it adequately explained the law. State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000). If the court’s charge correctly states the law “in language that can be understood by the jury there is no reversible error.” State v. Anderson, 261 Minn. 431, 435, 113 N.W.2d 4, 7 (1962).
Statutory construction is a question of law, which this court reviews de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). When the words of a statute are clear and unambiguous, a court must give effect to the plain meaning of the language. Minn. Stat. § 645.16 (1998).
Minn. Stat. § 343.21, subd. 1 (1998), states:
No person shall overdrive, overload, torture, cruelly beat, neglect, or unjustifiably injure, maim, mutilate, or kill any animal, or cruelly work any animal when it is unfit for labor, whether it belongs to that person or to another person.
“‘Torture’ or ‘cruelty’ means every act, omission, or neglect which causes or permits unnecessary or unjustifiable pain, suffering, or death.” Minn. Stat. § 343.20, subd. 3.
The trial court read to the jury the following instruction:
The elements of mistreating animals by torture or neglect are first, the defendant tortured, neglected or unjustifiably injured or killed an animal. Torture or neglect means every act, omission or neglect which causes or permits unnecessary or unjustifiable pain suffering or death.
Crume argues that an element of culpable negligence should be read into the statute because strict liability is inappropriate for a violation carrying such serious penalties. Culpable negligence has been defined as gross negligence plus an element of recklessness. State v. Werman, 388 N.W.2d 748, 750 (Minn. App. 1986) (citing State v. Frost, 342 N.W.2d 317, 320 (Minn. 1983)), review denied (Minn. Aug. 13, 1986). Because there is no language in Minn. Stat. § 343.21, subd. 1, that suggests that culpable negligence is an element of the offense the statute creates, the trial court did not abuse its discretion by not instructing the jury on culpable negligence.
4. Crume argues that there was insufficient evidence to support the jury’s verdict in light of the erroneous admission of prejudicial photographs, the failure to instruct the jury properly, and the failure to permit testimony on his state of mind.
To warrant a conviction, the state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged.” State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957). In reviewing a claim of insufficient evidence in a criminal case, this court determines
whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged.
State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (citation omitted). We review the evidence in the light most favorable to the conviction and assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” Id. (citation omitted). We will not set aside a verdict if the jury, acting with due regard for the presumption of innocence and the necessity to overcome that presumption by proof beyond a reasonable doubt, could reasonably have concluded that the defendant was guilty. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
We will consider Crume’s claim of insufficient evidence in light of our determinations that the trial court did not err with respect to the admission of evidence or the instructions to the jury. The evidence presented at trial, viewed in the light most favorable to the conviction, was sufficient to permit the jury to reasonably conclude that because of Crume’s neglect, dogs in his care did not receive water, and, as a result, dogs unnecessarily suffered and died.
5. Crume argues that he was denied due process and equal protection of the law under the federal and state constitutions because Minn. Stat. § 343.21, subd. 1, is vague and overbroad.
Statutes are presumed to be valid and will not be found unconstitutional unless their invalidity is clear or they are shown beyond a reasonable doubt to violate the constitution. State v. Ellis, 441 N.W.2d 134, 136-37 (Minn. App. 1989), review denied (Minn. July 12, 1989). A defendant who challenges the validity of a statute bears the very heavy burden of demonstrating the statute’s unconstitutionality beyond a reasonable doubt. State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990).
Due process requires that statutes providing for criminal prosecution be drafted “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983). To be sufficiently definite, a statute must be drafted so that persons of common intelligence can understand what is forbidden. Ellis, 441 N.W.2d at 137. A “law is impermissibly vague when it fails to draw a reasonably clear line between lawful and unlawful conduct.” City of Mankato v. Fetchenhier, 363 N.W.2d 76, 78 (Minn. App. 1985). Where a statute implicates no fundamental rights, a defendant must be judged by the standard of whether a reasonable person would believe that the statute proscribed his conduct. Id. at 78-79.
Crume argues that section 343.21 is unconstitutionally vague because the terms “neglect” and “torture” have no commonly understood meaning and, therefore, the statute does not provide sufficient definiteness as to the type of conduct prohibited. But a reasonable person of ordinary intelligence would understand that allowing dogs to go without water is prohibited by the statute because it is an act or omission that causes or permits unnecessary or unjustifiable pain, suffering, or death.
6. Crume argues that although the sentence imposed by the trial court is within the maximum allowed by law, the sentence is unreasonable, inappropriate, excessive, and unjustifiably disparate.
A person who fails to comply with any provision of section 343.21 is guilty of a misdemeanor. Minn. Stat. § 343.21, subd. 9 (1998). A misdemeanor sentence “may be reviewed only pursuant to [Minn. R. Crim. P.] 28.02, subd. 3.” Minn. R. Crim. P. 28.02, subd. 2(3). Crume did not follow the procedure set forth in Minn. R. Crim. P. 28.02, subd. 3, for obtaining discretionary review of his misdemeanor sentence. Consequently, we will not review his sentence. See State v. Moore, 381 N.W.2d 515, 517 (Minn. App. 1986) (appeal from misdemeanor sentence is not appeal as of right).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const art VI, § 10.
 Crume argues that, “The statute is overbroad because it prohibits constitutionally protected activity in deciding when to bury the dead animals.” He failed to present any argument or analysis of this issue. Therefore, the issue is waived. See Koppinger v. City of Fairmont, 311 Minn. 186, 189 n.2 248 N.W.2d 708, 711 n.2 (1976) (plaintiff who raised constitutional challenges to ordinance as issues in brief, but failed to present argument or analysis on those issues, waived issues).