This opinion will be unpublished and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

C2-00-666

 

State of Minnesota,
Respondent,

vs.

Nancy Irene Fitzgerald,
Appellant.

 

Filed November 7, 2000

Affirmed
Foley, Judge
*

 

Hennepin County District Court

File No. 99106042

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Jay M. Heffern, City Attorney, Steven E. Heng, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

 

Nancy Irene Fitzgerald, 4933 Oliver Avenue South, Minneapolis, MN  55409 (appellant pro se)

 

Considered and decided by Stoneburner, Presiding Judge, Foley, Judge, and Mulally, Judge.**


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges her convictions for (1) failing to clean animal feces, (2) owning more than three dogs without a permit, and (3) cruelty to animals.  She argues that a search warrant, issued largely on the basis of the issuance of earlier warrants, was invalid and that the search warrant application included intentional misrepresentations. Appellant also argues that the removal and forfeiture of the animals was improper and that the district court abused its discretion when it required that as a condition of probation she not own animals.  We affirm.

FACTS

            On April 27, 1999, Animal Control Officer Tom Doty received a complaint from appellant Nancy Irene Fitzgerald’s neighbor, Sophia Zompolas, of dogs barking at appellant’s residence.  Zompolas told Officer Doty that she observed four dogs in appellant’s yard and heard approximately 20 dogs barking inside the home. 

            About one hour after receiving the complaint, Officer Doty and Officer Robert Marotto drove down the alley behind appellant’s residence.  The officers observed a van parked in the driveway area behind the residence.  When they looked inside the van they observed approximately 20 empty animal carriers.  The officers also smelled a strong odor of urine and feces coming from appellant’s property.  The officers then spoke directly with Zompolas who confirmed the information in her complaint.

            Officer Doty then applied for and received a warrant to search appellant’s home. Officers Doty and Marotto and two Minneapolis police officers executed the warrant that same day.  The officers discovered 24 dogs over the age of four months and twelve puppies inside appellant’s home.  The officers reported that the residence smelled overwhelmingly of urine and feces and that they observed large amounts of urine and animal feces in the home.  The officers examined each animal and observed that the dogs appeared to be emaciated, their ribs and spines showing, and that they were dehydrated. Thirty-four of the thirty-six dogs had no access to food or water.  The dogs also suffered from rashes resulting in raw and exposed skin. 

            The dogs were removed and examined by Dr. Susan Gail, a veterinarian at the Minneapolis Animal Control shelter.  Dr. Gail’s veterinary report, which listed a variety of poor health conditions suffered by the dogs, was submitted into evidence.  

            Appellant was charged with violation of Minn. Stat. § 343. 21, subd. 1 (1998) (cruelty to animals); Minneapolis, Minn., Code of Ordinances, § 64.100 (owning three or more dogs without at permit); and Minneapolis, Minn., Code of Ordinances, § 64.50(b) (failure to clean animal feces).  Appellant filed a motion to suppress the evidence seized during the search and a motion to dismiss for lack of probable cause.  Following a hearing, the district court denied both motions.  Appellant waived her right to a jury trial and a court trial was held.  The district court found her guilty on all three counts.  On the cruelty to animals conviction, appellant was sentenced to serve 90 days in jail and pay restitution in the amount of $1,000.  The district court stayed 80 days for one year on the condition that appellant not possess any animals during the one-year probationary period and she permit periodic visits by animal control officers pursuant to Minn. Stat. § 343.21.   The district court did not sentence appellant on the remaining two counts.  This appeal followed.

D E C I S I O N

            Search Warrant

Appellant contends that the search warrant was improperly issued because it lacked probable cause.  When reviewing the issuance of a search warrant, great deference is given the district court’s probable cause determination.  State v. Ward, 580 N.W.2d 67, 70 (Minn. App. 1998).

Appellant contends that the search warrant lacked probable cause because it was issued solely because the application contained information regarding prior search warrants issued for her residence.  In addition to the statement about three prior search warrants, however, the application listed the following facts to support the search warrant request:

1.                  A neighbor called and stated that she observed four dogs in the yard at 4933 South Oliver Avenue. Additionally, the neighbor stated she heard an estimated twenty dogs barking inside the house.

2.         Animal control officers (including the affiant) observed a van loaded with empty animal carriers at [appellant’s] residence.  They also detected a strong smell of feces coming from the property. 

3.         Receipt of a complaint of six dogs barking in the backyard of [appellant’s] home.

Thus, while it is true that the application stated that search warrants for the same offense had been issued in the past, it also contained other information supporting the search warrant request.   

            Statements in the affidavit may be set aside.  See State v. Randa, 342 N.W.2d 341, 343 (Minn. 1984) (citation omitted) (district court should set aside statements in affidavit that are falsified or submitted with reckless regard for truth).  Hence, even if appellant’s contention that the statement regarding prior searches of her residence was improperly contained in the application, this statement may be set aside.   Because the remaining information in the application establishes the requisite probable cause for the issuance of the warrant, we hold that the search warrant was properly issued.  

            Sufficiency of the Evidence

Appellant next contends that the evidence presented at trial was insufficient to support her convictions.  Reversal of a conviction due to lack of sufficient evidence to sustain the conviction will occur only where the reviewing court has “grave doubt as to defendant’s guilt.”  State v. Roberts, 350 N.W.2d 448, 451 (Minn. App. 1984).  A reviewing court must view the record in the light most favorable to the conviction, State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989), and assume the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

In support of appellant’s assertion that the evidence was insufficient to support her conviction for failure to clean animal feces in violation of Minneapolis, Minn., Code of Ordinances, § 64.50 (b), she simply argues that the evidence was not compelling.  For instance, appellant argues that the amount of feces pictured in the photographs of her residence is a normal amount of feces for a large number of dogs to produce in five hours and that she simply had not had the opportunity to clean it up.  But both officers testified that they observed both fresh urine and feces and old, which had been absorbed into the floorboards all over the basement and first floor of the home.

            Appellant was also convicted of owning more than three dogs without a permit in violation of Minneapolis, Minn., Code of Ordinances 64.100.  Officers Doty and Marotto testified that a search of appellant’s home on April 27, 1999, turned up 24 dogs older than four months in age.

Appellant’s final conviction was for cruelty to animals in violation of Minn. Stat. § 343.21, subd. 1.  The state offered the testimony of Dr. Susan Gail who testified that all of the dogs were thin, dehydrated, and had dirty and foul smelling coats.  Gail evaluated the nutritional status of all of the dogs as poor.  Gail further testified that three of the puppies had large umbilical hernias that threatened strangulation and death.  Many of the dogs had ear infections, skin rashes, and pressure sores. 

Appellant argues that Dr. Gail’s evaluations were wrong.  She contends that the testimony of the veterinarian she called should be believed; however, that testimony only referred to the condition of two of the dogs.  Furthermore, when reviewing a claim of insufficiency of evidence, we must assume the fact-finder found Dr. Gail to be the more credible witness.  Because the standard of review requires that we review the evidence in the light most favorable to the convictions, we conclude there is sufficient evidence to sustain all convictions.

            Sentencing

Appellant has not properly raised the issue of sentencing on appeal.  Convictions for misdemeanors and ordinance violations are not appealable as a matter of right.  Minn. R. Crim. P. 28.02, subd. 2(3).  Appellant must petition this court for discretionary review within 30 days of her sentence.  Minn. R. Crim. P. 28.02, subd. 3.  Appellant was sentenced on March 22, 2000; no petition for review has been filed with this court.  Therefore, we need not address the issue of the propriety of appellant’s sentence. 

Forfeiture

            Both parties submitted memoranda in response to the district court’s request for briefing on the final disposition of the animals taken into custody by animal control.  On April 5, 2000, animal control was ordered to dispose of the animals according to the law under Minn. Stat. § 343.235 (1998). 

            Appellant argues that the requirements of Minn. Stat. § 343.235 were not met.  The district court stated that appellant never raised this issue below.  Even if she had, she was given a full court trial and the district court indicated that it considered the factors set forth under Minn. Stat. § 343.235, subd. 3(b).  The court found that appellant could not provide care for the animals in accordance with the law.  Thus, even if appellant had requested a hearing, she could not demonstrate the ability to care for the animals in accordance with the law as required by the statute.  Accordingly, the district court’s forfeiture order was proper.

            Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.