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In re Jessie T.

Court of Appeals of Arizona, First Division

June 8, 2017

IN RE JESSIE T.

         Appeal from the Superior Court in Maricopa County No. JV599661 The Honorable James P. Beene, Judge

          Maricopa County Public Advocate's Office, Mesa By Jason Kinsman Counsel for Appellant.

          Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Appellee.

          Presiding Judge Michael J. Brown delivered the opinion of the Court, in which Judge Patricia A. Orozco (Retired) joined. Judge Donn Kessler concurred in part and dissented in part.

          OPINION

          BROWN, Judge.

         ¶1 Jessie T. appeals the juvenile court's delinquency adjudication finding that he committed animal cruelty in violation of Arizona Revised Statutes ("A.R.S.") section 13-2910(A)(9) (subjecting an animal to cruel mistreatment), a class six felony. Because we conclude that the State failed to present sufficient evidence to support the court's adjudication, we modify the adjudication to reflect that Jessie committed the lesser-included offense of inflicting unnecessary physical injury to any animal, a class one misdemeanor, in violation of A.R.S. § 13-2910(A)(3).

         BACKGROUND

         ¶2 Police detectives discovered a Facebook photo of Jessie holding a pellet gun in one hand and a black cat by its tail in the other. The detectives also observed photos of a subsequent mutilation of what appeared to be the same cat. Jessie later admitted to a police officer that he shot the cat and did so "because it was a stray, and it was black." Jessie also admitted that after the shooting, he took pictures of a female friend disemboweling the cat.

         ¶3 The State filed a delinquency petition alleging Jessie intentionally or knowingly subjected an animal to cruel mistreatment in violation of A.R.S. § 13-2910.

A person commits cruelty to animals if the person . . . [i]ntentionally or knowingly subjects any animal to cruel mistreatment.
. . .
"Cruel mistreatment" means to torture or otherwise inflict unnecessary serious physical injury on an animal or to kill an animal in a manner that causes protracted suffering to the animal.

A.R.S. § 13-2910(A)(9), (H)(2).

         ¶4 At the adjudication hearing, after the close of the State's evidence, Jessie moved for a judgment of acquittal pursuant to Rule of Procedure for the Juvenile Court 29(D)(2). The State responded that it had made a "showing beyond a reasonable doubt" because "[Jessie] did cause reasonable risk of death or serious injury to the cat, because he shot the cat and killed it." The court denied the motion.

         ¶5 In its closing argument, the State asked the juvenile court to focus on "inflicting unnecessary physical injury to an animal" and argued that Jessie "did create a reasonable risk of death or serious impairment, because he actually killed the cat." The State highlighted the Facebook photo of Jessie holding the cat by the tail as evidence that he "actually did kill the cat." Alternatively, the State argued that if it had failed to meet its burden of proving Jessie subjected the cat to cruel mistreatment under A.R.S. § 13-2910(A)(9), the court should adjudicate him delinquent for violating A.R.S. § 13-2910(A)(3), as a lesser-included offense that prohibits unnecessarily inflicting "physical injury" to any animal. Defense counsel countered that "killing an animal and causing serious physical injury [are] not the same." Counsel also pointed to the distinct elements of "killing" and "serious physical injury" within the statute to support his argument. The State ...


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