Peo v. Caswell

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 19, 2021

2021COA111

No. 18CA0464, Peo v Caswell — Crimes — Cruelty to Animals

— Prior Convictions

As a matter of first impression, the division considers whether

the Colorado legislature intended that prior convictions constitute a

penalty enhancer rather than a substantive element of the offense

of cruelty to animals, § 18-9-202, C.R.S. 2020. Applying the

supreme court’s analysis in Linnebur v. People, 2020 CO 79M, the

division concludes that the legislature clearly intended that prior

convictions constitute a penalty enhancer and, therefore, affirm

Constance E. Caswell’s felony convictions.

The division also considers whether the trial court erred by

denying (1) three of Caswell’s for-cause challenges; (2) Caswell’s

pretrial motion to suppress; and (3) evidentiary objections at trial.
COLORADO COURT OF APPEALS 2021COA111

Court of Appeals No. 18CA0464
Lincoln County District Court No. 16CR32
Honorable Robert Lung, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Constance Eileen Caswell,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE ROMÁN
Harris and Lipinsky, JJ., concur

Announced August 19, 2021

Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury found defendant, Constance Eileen Caswell, guilty of

forty-three counts of cruelty to animals. § 18-9-202, C.R.S. 2020.

The trial court sentenced her to forty-three days in jail, eight years

of probation, and community service, and assessed fines and costs.

Caswell contends on appeal that reversal is required because the

trial court erred by (1) entering felony convictions even though the

People did not prove beyond a reasonable doubt, to a jury, that

Caswell had a prior conviction for cruelty to animals; (2) denying

three for-cause challenges to potential jurors; (3) denying Caswell’s

pretrial motion to suppress evidence of dead dogs; and (4) admitting

the evidence of dead dogs at trial contrary to CRE 403 and CRE

404(b). We affirm.

I. Background

¶2 Investigators from the Lincoln County Sheriff’s Office seized

twenty-nine dogs, four cats, five birds, and five horses from

Caswell’s property after observing no food or water available for the

dogs; no water or fresh air for the cats; no food, drinkable water, or

fresh air for the birds; and no drinkable water and insufficient food

for the horses. In addition, enclosed spaces holding animals were

covered in trash and feces and smelled strongly of ammonia.

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Further, the majority of the seized animals were underweight, some

were dehydrated, and some had untreated medical conditions,

including lacerations. Investigators also exhumed five dead dogs,

although the investigators could not discern when or how the dogs

had died.

¶3 The People charged Caswell with forty-three counts of cruelty

to animals. The jury convicted her on all counts. At sentencing,

Caswell conceded that she had previously been convicted of cruelty

to animals.1 During sentencing, the trial court treated Caswell’s

prior convictions as sentence enhancers rather than as elements of

the offense of cruelty to animals that a jury must find beyond a

reasonable doubt. The court’s finding that Caswell had prior

convictions elevated her misdemeanor offenses to felonies.

II. Analysis

¶4 As a matter of first impression, we consider whether the

Colorado legislature intended that prior convictions constitute a

1Before trial, defense counsel moved for a bifurcated jury trial to
determine whether Caswell had a prior conviction. The trial court
denied Caswell’s motion, ruling that the prior conviction was a
sentence enhancer and, therefore, a bifurcated jury trial was
unnecessary.

2
penalty enhancer rather than a substantive element of the offense

of cruelty to animals. Because we conclude the trial court applied

the correct standard when it determined whether Caswell was

entitled to a jury determination of the prior conviction, we affirm

her sentence and consider her for-cause challenges, motion to

suppress, and evidentiary challenges.

A. Prior Convictions

¶5 Caswell contends the General Assembly intended prior

convictions to constitute elements of the offense of felony cruelty to

animals and, therefore, her conviction must be reversed because

her prior conviction was not proven to a jury beyond a reasonable

doubt. She relies on the analysis in our supreme court’s recent

decision in Linnebur v. People, 2020 CO 79M. We agree that the

analysis in Linnebur is instructive, but we disagree that it requires a

reversal in this case.

1. Standard of Review and Applicable Law

¶6 “Whether a statutory provision constitutes a sentence

enhancer or a substantive element of an offense presents a question

of law that we review de novo.” Id. at ¶ 9. Because “[t]he General

Assembly has plenary authority to define criminal conduct and to

3
establish the elements of criminal liability,” we construe the cruelty

to animals statute to ascertain and give effect to the legislature’s

intent. Id.

¶7 To discern the legislature’s intent, “we look first to the

language of the statute, giving its words and phrases their plain

and ordinary meanings.” Id. (quoting McCoy v. People, 2019 CO 44,

¶ 37). “If the plain language of the statute demonstrates a clear

legislative intent, we look no further in conducting our analysis.”

Id. (quoting Springer v. City & Cnty. of Denver, 13 P.3d 794, 799

(Colo. 2000)).

¶8 If a statute does not explicitly designate whether a fact is an

element of a crime or a sentencing factor, we look to the “(1)

language and structure [of the statute], (2) tradition, (3) risk of

unfairness, (4) severity of the sentence, and (5) legislative history” to

determine the General Assembly’s intent. Id. at ¶ 10 (quoting

United States v. O’Brien, 560 U.S. 218, 225 (2010)).

2. Discussion

¶9 Section 18-9-202 — the cruelty to animals statute — provides,

in relevant part, as follows:

4
(1)(a) A person commits cruelty to animals if he
or she knowingly, recklessly, or with criminal
negligence overdrives, overloads, overworks,
torments, deprives of necessary sustenance,
unnecessarily or cruelly beats, allows to be
housed in a manner that results in chronic or
repeated serious physical harm, carries or
confines in or upon any vehicles in a cruel or
reckless manner, engages in a sexual act with
an animal, or otherwise mistreats or neglects
any animal, or causes or procures it to be
done, or, having the charge or custody of any
animal, fails to provide it with proper food,
drink, or protection from the weather
consistent with the species, breed, and type of
animal involved, or abandons an animal.

....

(2)(a) Except as otherwise provided in
subsection (2)(b) of this section, cruelty to
animals . . . is a class 1 misdemeanor.

....

(2)(b)(I) A second or subsequent conviction
under the provisions of paragraph (a) of
subsection (1) of this section is a class 6
felony.

¶ 10 While the cruelty to animals statute does not explicitly specify

whether prior convictions are an element of the offense or a penalty

enhancer, our statutory analysis leads us to the conclusion that the

language and structure of the statute clearly signal the General

5
Assembly’s intent to designate prior convictions as penalty

enhancers.

¶ 11 What persuades us the most is that the provision at issue is

included in the subsection of the statute that enumerates penalties

and sentencing provisions, as opposed to the subsection containing

the substantive elements of the crime. Compare § 18-9-202(1)(a)-(c)

(enumerating the elements of the offenses of cruelty to animals,

aggravated cruelty to animals, and cruelty to a service animal), with

§ 18-9-202(2)(a)-(c) (outlining the sentencing and penalties

associated with a cruelty to animals conviction).

¶ 12 In addition, the cruelty to animals statute does not require

that the prior convictions be charged in the indictment or

information.

¶ 13 Caswell argues the supreme court’s analysis and conclusion in

Linnebur compel a different result. There, the court concluded that

the language and structure of the statutes outlining the elements

and penalties for felony and misdemeanor DUI clearly indicated the

General Assembly’s intent to make prior DUI convictions elements

of the offense of felony DUI. Linnebur, ¶¶ 22-24.

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¶ 14 In support of its conclusion, the Linnebur court specifically

noted (1) the legislative history of constructive amendments to the

DUI statute “suggest[ed] that the General Assembly intended prior

convictions to be treated differently when the defendant is charged

with a felony than when he is charged with a misdemeanor,” id. at

¶¶ 21-22; (2) the General Assembly included a provision that prior

DUI and DWAI convictions must be charged in the indictment or

information, id. at ¶ 22; (3) the statutory language escalating the

penalty is in the same provision as the other elements of the

substantive offense, rather than in the statutory provision setting

forth penalties, id. at ¶ 23; and (4) the General Assembly provided

“numerous additional protections . . . for defendants charged with

felony DUI,” including a preliminary hearing, a trial by a

twelve-person jury, and the right to a unanimous verdict, id. at

¶ 24.

¶ 15 And, while the court recognized that, “[i]n a vacuum, tradition

would certainly weigh in favor of considering the fact of prior

convictions to be a sentence enhancer,” the clear language and

structure of the felony DUI statute compelled its conclusion that the

prior convictions were elements of felony DUI. Id. at ¶¶ 26-27.

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¶ 16 Finally, the court contemplated the risk of unfairness and

when to consider whether, under the Sixth Amendment, a jury

must decide if the defendant had prior convictions:

[T]here are good reasons to question the
legitimacy of proving prior convictions only to a
judge when the prescribed penalties (and
attendant collateral consequences) for felony
[driving under the influence (DUI)] are so
significant. Ultimately though, subject to
constitutional limitations, whether the fact of
prior convictions constitutes an element of the
offense or a sentence enhancer depends on
legislative intent. As such, if we can glean a
clear legislative intent in either direction, then
we may leave aside the Sixth Amendment
issue and simply resolve this case as a matter
of statutory interpretation.

Id. at ¶ 31.

¶ 17 In our view, the language and structure of the cruelty to

animals statute are different than those of the DUI statutory

scheme, compelling a different result. Unlike the structure of the

felony DUI statute, the prior conviction language in the cruelty to

animals statute appears in a different subsection from that setting

forth the elements of the substantive offense. Compare § 18-9-

202(1)-(2), with § 42-4-1301(1)(a), C.R.S. 2020. And, unlike the

prior conviction penalty enhancer provisions of the DUI statutory

8
scheme, which omit the prior convictions required for felony DUI,

the prior conviction provision in the animal cruelty statute is

included in the subsection outlining penalty and sentencing

provisions. See § 42-4-1307(5), (6), C.R.S. 2020. Also, unlike the

felony DUI statute, the animal cruelty statute does not require prior

convictions to be alleged in the indictment or information for a

second or subsequent charge of cruelty to animals. Compare § 42-

4-1301(1)(j), with § 18-9-202.

¶ 18 Moreover, we are unpersuaded that the Linnebur court’s

analysis regarding tradition and fairness compel us to conclude

that prior convictions are elements of the offense rather than

penalty enhancers. First, while not dispositive, tradition “would

certainly weigh in favor of considering the fact of prior convictions

to be a [penalty] enhancer.” Linnebur, ¶ 26. Indeed, at least one

division of this court has concluded that prior convictions under the

cruelty to animals statute is a penalty enhancer. See People v.

Harris, 2016 COA 159, ¶ 75; see also Linnebur, ¶ 43 (Márquez, J.,

dissenting) (treating prior convictions as penalty enhancements

“is . . . consistent with the legislature’s treatment of prior

9
convictions in other statutes, such as cruelty to animals and

indecent exposure”) (citations omitted).

¶ 19 Second, because we conclude that the legislature clearly

intended prior convictions to constitute penalty enhancers rather

than a substantive element of the offense of cruelty to animals, “we

may leave aside the Sixth Amendment issue and simply resolve this

case as a matter of statutory interpretation.” Linnebur, ¶ 31; see

also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

¶ 20 Accordingly, we conclude that, because the statutory language

indicates that the legislature clearly intended prior convictions

under the animal cruelty statute to constitute a penalty

enhancement, the prior convictions need not be found by a jury.

See Apprendi, 530 U.S. at 490. Thus, we affirm Caswell’s felony

conviction.

B. For-Cause Challenges

¶ 21 Caswell argues the trial court erred by denying for-cause

challenges to three potential jurors who she contends were biased

— Juror J, Juror F, and Juror D. Although defense counsel

exercised peremptory strikes to remove these three jurors, Caswell

also argues that her constitutional right to an impartial jury was

10
violated because defense counsel was forced to exercise peremptory

strikes that counsel may have used on other jurors because of the

trial court’s error.

¶ 22 Assuming, without deciding, that Caswell is correct that Juror

J, Juror F, and Juror D should have been removed for cause, we

discern no reversible error. Vigil v. People, 2019 CO 105, ¶¶ 21, 25.

Absent a showing of the trial court’s bad faith, a defendant’s right to

an impartial jury is not adversely affected by an erroneous denial of

his challenge for cause if that juror is otherwise removed — for

example, by a peremptory challenge. Id.

¶ 23 None of these three prospective jurors sat on the jury, and we

are not persuaded the trial court acted in bad faith in failing to

dismiss them. Id. at ¶ 25. Indeed, the record reflects the trial court

attempted to seat a fair and impartial jury as the court granted

seven of Caswell’s challenges for cause. Id. at ¶ 21. Accordingly,

we reject Caswell’s contentions regarding jury selection.

C. Admission of Evidence of Dead Animals

¶ 24 Caswell next argues the trial court erred in denying her motion

to suppress evidence of dead animals, and subsequently erred by

admitting the evidence at trial contrary to CRE 403 and CRE

11
404(b). Because any error in the introduction of this evidence at

trial was harmless beyond a reasonable doubt, we discern no

reversible error.

1. Additional Facts

¶ 25 Caswell moved to suppress evidence of dead dogs buried on

her property, arguing that the search warrant violated Caswell’s

Fourth Amendment rights because it “contained no mention of dead

animals and did not grant any authority to law enforcement officials

to dig on the property.” See U.S. Const. amend. IV. The

prosecution argued that evidence of the dead dogs was admissible

because the affidavit supporting the warrant, which requested

permission to seize animals “living, dead, born and unborn, above

or below ground and any other that appear to be neglected or

abused,” was curative pursuant to People v. Stanton, 924 P.2d 127

(Colo. 1996). In Stanton, the supreme court held that a deficient

warrant can be cured by an accompanying affidavit if (1) the

warrant incorporates a curative affidavit by reference; (2) both

documents are presented to the issuing magistrate or judge; and (3)

the curative affidavit accompanies the warrant during the execution

of the warrant. Id. at 132.

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¶ 26 Relying on Stanton, the trial court denied the motion to

suppress, finding that the affidavit cured any deficiency in the

warrant.

¶ 27 At trial, the People sought to admit the evidence of the dead

dogs through the testimony of Officer Joseph Colpitts, who first

came into contact with Caswell and the animals and submitted the

affidavit in support of the search warrant. Caswell’s counsel

objected, arguing that the evidence was irrelevant and unduly

prejudicial under CRE 401, 402, and 403. The prosecutor argued

the evidence was relevant to the “care that the Caswells had

provided to the animals that they had on their property,” and that

the evidence’s probative value substantially outweighed the

prejudicial effect. The trial court agreed with the prosecutor, ruling

that, although “the existence of [the dead] animal[s] . . . doesn’t

prove anything,” the evidence was relevant “to the property there”

and, affording the evidence its maximum probative value and

minimum prejudicial effect, allowed the prosecutor to elicit the

testimony.

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2. Discussion

¶ 28 We review preserved errors of a constitutional dimension for

constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11.

Under that standard, we will reverse unless the People establish

any error was harmless beyond a reasonable doubt. Id.

¶ 29 Once again, assuming, without deciding, that the trial court

improperly denied the motion to suppress, we conclude that the

admission of the evidence was nevertheless harmless beyond a

reasonable doubt. See People v. Bass, 155 P.3d 547, 551 (Colo.

App. 2006).

¶ 30 In considering whether an error was constitutionally harmless,

we “examine a number of factors, including the importance of the

evidence to the prosecution’s case, the cumulative nature of the

evidence, the presence or absence of corroborating or contradictory

evidence on the material points of the evidence, and the overall

strength of the prosecution’s case.” Id. (citing Blecha v. People, 962

P.2d 931 (Colo. 1998)). While our review of the trial court’s rulings

on the motion to suppress and the relevancy of the evidence is

based only on the evidence presented at the suppression hearing

14
and trial, respectively, we consider the entire record in evaluating

whether any error was harmless. People v. Singley, 2015 COA 78M.

¶ 31 Applying the relevant factors, we conclude the evidence of the

dead dogs was harmless beyond a reasonable doubt for two

reasons.

¶ 32 First, the properly admitted evidence of Caswell’s guilt was

overwhelming. The court instructed the jury that to find Caswell

guilty they had to find, beyond a reasonable doubt, that Caswell

knowingly, recklessly, or with criminal negligence “failed to provide

[the animal] with proper food, drink, or protection from the weather

consistent with the species, breed, and type of animal involved.”

See § 18-9-202(1)(a).

¶ 33 The jury heard testimony from multiple animal care

investigators, a veterinarian, and Officer Colpitts:

• The dogs had no available food or drinking water.

• The dogs, mostly short-haired breeds, were kept in

environments that smelled strongly of ammonia and were

covered in trash and feces, and some of the dogs were

exposed to wind and cold.

15
• “Quite a few” dogs were underweight and/or had injuries

that were “bloody and raw” and did not appear to have

received any medical treatment.

• The cats were locked in a room that smelled strongly of

ammonia with no water or access to food.

• The birds did not have clean water or food.

• The birds were kept in cages that contained a buildup of

waste, in a room with little light or fresh air.

• The horses were all underweight, had access to only

frozen water, and were given less than half of the food

they required.

¶ 34 In addition, jurors saw body camera footage depicting this

evidence. Likewise, the expert in animal investigations, treatment,

and care who examined the property went through photographs of

each of the forty-three animals one by one, stating the animals’

condition.

¶ 35 Second, the evidence regarding the dead dogs was not

important to the prosecution’s case, as each of the forty-three

counts of cruelty to animals pertained to a specific, live animal

recovered from the property and did not include the dead dogs.

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And the testimony regarding the dead dogs constituted only a minor

part of only Officer Colpitts’s testimony.2 The remaining witnesses,

including a Pet Animal Care and Facilities inspector, an investigator

with the Colorado Humane Society, and an expert in veterinarian

medicine, did not testify about the dead dogs. Further, the

prosecutor did not refer to the dead dogs during closing argument.

¶ 36 Accordingly, we discern no reversible error in denying

Caswell’s motion to suppress or in admitting the evidence at trial.

See Bass, 155 P.3d at 551.

III. Conclusion

¶ 37 The judgment of conviction is affirmed.

JUDGE HARRIS and JUDGE LIPINSKY concur.

2 Officer Colpitts testified that he did not know when the dogs died
or what caused their death, thereby further reducing the
significance of the evidence with respect to the charges.

17