Opinion
No. 1 CA-CR 18-0813
10-31-2019
STATE OF ARIZONA, Appellee, v. MARK GEORGE MLEZIVA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee Lorona Mead, PLC, Phoenix By Jess A. Lorona Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CR201701522
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee Lorona Mead, PLC, Phoenix
By Jess A. Lorona
Counsel for Appellant
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined. MORSE, Judge:
¶1 Mark G. Mleziva appeals his convictions of first-degree burglary and felony cruelty to animals. For the reasons that follow, we affirm the convictions.
FACTS AND PROCEDURAL BACKGROUND
¶2 Although the facts in this case are not substantially disputed, we view the trial evidence "in the light most favorable to sustaining the conviction." State v. Lee, 189 Ariz. 608, 615 (1997).
¶3 On October 6, 2017, Mleziva shot two of his neighbor's dogs, a black Labrador Retriever named Asa and a white "lab/shepherd mix" named Kona. Using a .22 caliber pistol, Mleziva fired at the two animals through an open sliding-glass patio door of the neighbor's house. Although Mleziva claimed his feet remained outside the house, he admitted that "perhaps" his shooting hand had "broken the plane" of the door. Police recovered three shell casings, two inside the house and one on the back patio.
¶4 The white lab was discovered lying in the bedroom doorway covered in blood and only able to "lift his head." When police arrived, the white lab was so immobile that it "wasn't able to stand up on his own" and had to be "lifted... onto a stretcher." The white lab had been shot in the back and in the neck. The wounds paralyzed it and "there was no movement below the neck." After a few days, the paralysis did not go away and the owner had the white lab put down.
¶5 The black lab was found in its kennel, bleeding heavily and "extremely cold to the touch." Although "lethargic," the black lab was conscious and able to "very slowly" walk on its own. It suffered from one or two visible gunshot wounds on its side and died later that night. The veterinarian that treated the dogs did not testify at trial.
¶6 When questioned by police, Mleziva said he "was sick of the dogs barking and went over there and decided to shut those damn dogs up and shot [th]em." He complained about the "barking and howling" from the dogs—which he referred to as "useless piles of crap"—and asserted that the "damn animal control" never did anything about it.
¶7 After a jury trial, Mleziva was convicted of one count of first-degree burglary, a dangerous offense, and two counts of felony cruelty to animals. The jury acquitted Mleziva of one count of discharging a firearm at a residence. The superior court sentenced him to a 10.5-year prison term for burglary and 1-year terms on the animal cruelty counts, with all sentences to be served concurrently.
¶8 Mleziva filed a timely notice of appeal from his convictions. This Court has jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶9 Mleziva argues insufficient evidence supported his two convictions for felony animal cruelty and, by extension, his conviction for burglary, because the state failed to prove the requisite criminal intent.
¶10 The sufficiency of evidence is a question of law this Court reviews de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We will reverse only if no "substantial evidence exists to support the jury verdict." State v. Stroud, 209 Ariz. 410, 411, ¶ 6 (2005). "Substantial evidence is proof that reasonable persons could accept as adequate . . . to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009) (citation and internal quotation marks omitted). Evidence sufficient to support a conviction can be direct or circumstantial. State v. Landrigan, 176 Ariz. 1, 4 (1993).
¶11 Criminal intent is a state of mind and may be "shown by circumstantial evidence." State v. Routhier, 137 Ariz. 90, 99 (1983). In the absence of an "outright admission," a defendant's mental state may be inferred "from all relevant surrounding circumstances," In re William G., 192 Ariz. 208, 213 (App. 1997), including the defendant's "words and actions at or near the time of the offense," State v. Murdaugh, 209 Ariz. 19, 31, ¶ 59 (2004). Whether a defendant possessed the requisite intent "is one of the questions of fact for the jury's determination." State v. Quatsling, 24 Ariz. App. 105, 108 (1975). This Court does not reweigh evidence on appeal, and we defer to the jury's resolution of any inconsistencies in the evidence. See State v. Parker, 113 Ariz. 560, 561 (1976) ("[I]t is the jury's function to weigh the evidence as a whole, to resolve any inconsistencies therein and then to determine whether or not a reasonable doubt exists.").
I. Animal Cruelty
¶12 Mleziva's core argument on appeal is that the state failed to prove the mens rea required for felony animal cruelty. A person commits felony animal cruelty if he "[i]ntentionally or knowingly subjects any animal to cruel mistreatment." A.R.S. § 13-2910(A)(9) (2017). The statute is not satisfied by mere proof that the animal died. See In re Jessie T., 242 Ariz. 556, 558, ¶ 7 (App. 2017). "'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(H)(2) (2017). "Serious physical injury" is defined to include "physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb." A.R.S. § 13-105(39). A "reasonable risk" of death is established if it "would be sensible, logical, or rational to believe" that death could result from the injury inflicted. See 3613 Ltd. v. Dep't of Liquor Licenses & Control, 194 Ariz. 178, 183-84, ¶ 23 (App. 1999).
We cite the 2017 version of the statute, as the statute was amended in 2019.
¶13 Mleziva concedes that at least one of the dogs suffered cruel mistreatment. But he argues the state failed to prove he knowingly or intentionally caused the dogs to suffer cruel mistreatment, and asserts he only recklessly subjected the dogs to cruel mistreatment. Under this theory, Mleziva would only be guilty of misdemeanor animal cruelty. See A.R.S. § 13-2910(A)(4) (2017); In re Jessie T., 242 Ariz. at 561, ¶ 23 (determining misdemeanor animal cruelty is a lesser-included offense if committed recklessly). We find Mleziva's theory unpersuasive.
At Mleziva's request, A.R.S. § 13-2910(A)(3) and (A)(5) were offered as lesser-included jury instructions. --------
¶14 Substantial evidence supports the jury's finding that Mleziva intentionally or knowingly subjected the dogs to "cruel mistreatment" when he shot them and caused them unnecessary serious physical injuries. See A.R.S. § 13-2910(A)(9) (2017). A trier of fact could reasonably infer that shooting the dogs was unnecessary, based on Mleziva's admission that he shot them simply to stop the barking. See In re Jessie T., 242 Ariz. at 561, ¶ 24 (shooting a cat because it was "black" and a "stray" was "unnecessary"). After Mleziva shot the white lab it was paralyzed and could only lift its head. See A.R.S. § 13-105(39) ("serious physical injury" includes "loss or protracted impairment of the function of any . . . limb"). The black lab was "bleeding heavily," could only move "very slowly" on its own, and photographs showed the bottom of its kennel filled with blood. See A.R.S. § 13-105(39) ("serious physical injury" includes injury that creates a "reasonable risk of death"). The fact the black lab died several hours after Mleziva shot it is further evidence he injured it in a way reasonably likely to produce death. See State v. Martinson, 241 Ariz. 93, 102, ¶ 41 (App. 2016) (noting that a victim's death was "'objective evidence' permitting the jury to conclude [ ] abuse occurred under circumstances likely to produce death or serious physical injury").
¶15 On appeal, Mleziva asserts he shot the dogs with the intent "to kill the dogs, and kill them quickly," but that is not what he did. After shooting the dogs multiple times, Mleziva left them still alive and bleeding. He did not attempt to help the dogs or put a quick end to their suffering. See State v. Vann, 11 Ariz. App. 180, 182 (1970) ("What the defendant does or fails to do and what he says may be evidence of what is going on in his mind."). Indeed, after the fact, Mleziva made disparaging statements to police about the dogs. See State v. Harvey, 193 Ariz. 472, 475, ¶ 14 & n.2 (App. 1998) (finding sufficient evidence the defendant intentionally or knowingly caused serious physical injury when he shot the victim through an open car window after approaching and starting an argument). The record contains substantial evidence from which a reasonable jury could conclude that Mleziva intentionally or knowingly caused the dogs to suffer "cruel mistreatment."
¶16 Citing Jessie T., Mleziva argues that because the injuries he caused the dogs were fatal, they cannot also be serious physical injuries within the meaning of the statute. However, Jessie T. does not support his argument. Jessie T. held that the death of an animal, standing alone, does not prove serious physical injuries, but also expressly recognized that serious physical injury may be established by "proof of protracted suffering" before the animal's death. 242 Ariz. at 559-60, ¶¶ 13, 17. The evidence presented at trial in this case, including the witnesses' descriptions of the dogs at the house, the photographs of the dogs, and their owner's testimony of the dogs' condition at the veterinarian office, was sufficient to allow a reasonable jury to conclude that both animals experienced protracted suffering before they died.
II. Burglary
¶17 Mleziva's only challenge to his burglary conviction is that he was wrongly convicted of felony animal cruelty. Burglary in the first degree requires proof of a burglary (i.e., entering or remaining in a residential structure with intent to commit a theft or felony) while possessing a deadly weapon or dangerous instrument. A.R.S. § 13-1508(A). Mleziva argues that because there was insufficient evidence to sustain the felony animal cruelty convictions, the evidence was necessarily insufficient to prove the "theft or any felony" element. Because we affirm the underlying felony convictions for animal cruelty, we also affirm the conviction for first-degree burglary. Although Mleziva raises no other arguments, we are satisfied that sufficient evidence supports the burglary conviction. See State v. Decker, 239 Ariz. 29, 34, ¶ 25 (App. 2016) (holding that firing bullets into a structure is a sufficient entry for purposes of burglary); see also State v. Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007) (although not required to search the record for fundamental error, we will not ignore it if we see any).
CONCLUSION
¶18 For the foregoing reasons, we affirm.