COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 03/01/2013. TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III. TRIAL COURT DISPOSITION: CONVICTED OF ANIMAL CRUELTY AND SENTENCED TO NINETY DAYS IN THE CUSTODY OF THE SHERIFF OF MADISON COUNTY, WITH EIGHTY-THREE DAYS SUSPENDED AND TWO YEARS OF UNSUPERVISED PROBATION.
FOR APPELLANT: KEVIN DALE CAMP, JARED KEITH TOMLINSON.
FOR APPELLEE: JOHN GORDON (TRAE) SIMS III.
FAIR, J. IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. JAMES J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND BARNES, J. CARLTON, J., NOT PARTICIPATING.
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
[¶1] Jonathan Shotts was charged with animal cruelty after burning his girlfriend's dog, Chloe, while giving it a bath. He said it was an accident. There were no other witnesses, and the attending veterinarian testified that Chloe's injuries were consistent with Shotts's account. The county court nonetheless convicted Shotts after suggesting he could be guilty of animal cruelty if he had " carelessly" hurt Chloe. Instead, the 2011 animal cruelty statute, since repealed, required proof beyond a reasonable doubt that Shotts acted maliciously. Since the prosecution failed to meet that burden, we reverse and render Shotts's conviction.
[¶2] Shotts was prosecuted under Mississippi Code Annotated section 97-41-16(1) (Rev. 2006), which at the time of the alleged offense  provided:
Any person who shall maliciously, either out of a spirit of revenge or wanton cruelty, or who shall mischievously kill, maim or wound, or injure any dog or cat, or cause any person to do the same, shall be fined not more than One Thousand Dollars ($1,000.00) or be imprisoned not exceeding six (6) months.
Shotts agreed to a bench trial, and before announcing his decision, the Madison County County Court judge stated:
The charge that has been brought . . . is based on the applicable -- based on the statute 97-14-16, which is entitled " Malicious or Mischievous Injury to Dog or Cat." For the record, it states that [" ]any person who shall maliciously, either out of a spirit of revenge or wanton cruelty, or who shall mischievously kill, maim, or wound or injure any dog or cat or cause any person to do the same shall be fined not more than $1,000 or be imprisoned not exceeding six months." There's a distinction [--] or the statute makes a distinction obviously [--] between the terms malicious and mischievous.
So the Court took it upon itself to actually look up malicious and mischievous. I think all the [attorneys] know the first thing you do . . . is go to Black's Law Dictionary [-- i]t's been around forever -- and look it up. Malicious, which is a little bit easier term, I think, for most of us to grasp, appears to be a willful or more an intentional act. But the dictionary defines mischief as damage -- well, one [definition] says damage to property of another, purposely, intentionally, or recklessly. Reckless is defined as careless, inattentive, and indifferent to consequences, and it says according to certain circumstances it may mean wanton or willful or it may mean only careless. I think that the legislature has distinguished . . . those two terms, and, once again, I think it's obvious that they did distinguish them.
Even if mischievously were broader than maliciously, which it is not, the charging affidavit alleged only that Shotts " willfully, unlawfully and maliciously" injured Chloe; he was not charged with mischievously hurting the dog. " The prosecution is held strictly to prove the allegations of the indictment and may not vary from the proof of those allegations unless the variance is a lesser-included[ ] offense." Rushing v. State, 753 So.2d 1136, 1146 (¶ 45) (Miss.Ct.App. 2000).
[¶3] As to the meaning of " maliciously" in the animal cruelty statute, the Mississippi Supreme Court elaborated in Rembert v. State, 56 Miss. 280, 281-82 (1879):
The affidavit charged the shooting here [of a horse] to have been done " maliciously," but omitted the words, " out of a spirit of revenge, or wanton cruelty."
Were these words essential? We think not. They are merely descriptive, or by way of definition of the word " maliciously," as here used. They are parenthetical, and may be wholly omitted without altering the sense. It is just as if the language was: " Any person who shall maliciously, that is to say, either in a spirit of revenge, or wanton cruelty," etc.
The definition of malicious mischief, at common law, is an injury done to the personal property of another, " either out of a spirit of wanton cruelty, or black and diabolical revenge." 4 Bla. Comm. 243.
The imputation of cruelty was, of course, applicable only to living things, and not to inanimate property.
The spirit of revenge would ordinarily, though not necessarily, be towards the owner.
In none of the common-law precedents of indictments for malicious mischief do we find an averment of the spirit of
revenge, or wanton cruelty; though, as we have seen, these were the elements that made up the offence.
Thus, the supreme court held that although the words " either out of a spirit of revenge or wanton cruelty" may be left out of the indictment, they nonetheless constitute the definition of malicious as used in the statute. Id. at 282; see also Duncan, 49 Miss. at 334.
[¶4] In Duncan, the supreme court held that one could not be convicted under the statute even if he injured or killed an animal intentionally, unless his actions were also malicious. See Duncan, 49 Miss. at 340 (" [T]he willful and unlawful killing [of a protected animal] would not bring the case within the statute." ) The court cited with approval cases from other jurisdictions where it was held to be a defense that the animal had been killed or injured to prevent it from damaging crops. Id. at 336-39.
[¶5] If one cannot be guilty of animal cruelty for intentionally injuring an animal without malice, then simple carelessness is clearly not punishable under the statute. " Wanton cruelty" differs from mere carelessness or ordinary recklessness in that " [o]ne who is acting recklessly is fully aware of the unreasonable risk he is creating, but may be trying and hoping to avoid harm," whereas " [o]ne acting wantonly . . . is not trying to avoid [harm] and is indifferent to whether harm results or not." Black's Law Dictionary 1719-20 (9th ed. 2009) (quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 879-80 (3d ed. 1982)). " Wanton conduct has properly been characterized as 'vicious' and rates extreme in the degree of culpability." Id.
[¶6] Because the trial judge applied an improper legal standard in adjudicating Shotts's guilt, Shotts is entitled to, at the very least, remand to the county court for the trial judge to render a verdict under the correct standard. See United States v. Reeves, 752 F.2d 995, 1002 (5th Cir. 1985) (" We express no opinion on whether a new trial is necessary, but leave this to the sound discretion of the district court." ).
[¶7] We do not stop there, however. A thorough review of the record reveals that the prosecution fell far short of proving that Shotts injured Chloe maliciously; the evidence was insufficient to support a guilty verdict even if the proper legal standard had been employed.
[¶8] For sufficiency of the evidence, " the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). " [W]here the evidence fails to meet this test it is insufficient to support a conviction." Id.
[¶9] The prosecution produced only three witnesses. The first, Shotts's ex-girlfriend, described Chloe as a very small dog, a " Chiffon Brussels Griffon and Shih Tzu mix" weighing three or three and a half pounds. At the time of the incident, Chloe was a little more than a year old. The girlfriend admitted that prior to the incident, Shotts had a good relationship with Chloe; she described how, when he came to visit, Shotts would bring Chloe treats and play with her.
[¶10] On April 7, 2011, the girlfriend left Chloe at the kennel with Shotts when she went to work. Shotts called around 5 p.m. to tell her that Chloe had been burned while he was bathing her, and some of Chloe's hair had fallen out. Shotts said it was an ...