COLORADO COURT OF APPEALS                                      2016COA159


Court of Appeals Nos. 14CA1435 & 14CA1436
Pueblo County District Court Nos. 12CR222 & 12CR27
Honorable William David Alexander, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Valerie Christine Harris,

Defendant-Appellant.


                              JUDGMENT AFFIRMED

                                  Division II
                         Opinion by JUDGE HARRIS
                        Dailey and Furman, JJ., concur

                            Announced November 3, 2016


Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Darol C. Biddle, Pueblo, Colorado; Darrel L. Campbell, Westminster, Colorado,
for Defendant-Appellant
¶1    Valerie Christine Harris was convicted of twenty-two counts of

 cruelty to animals after dozens of malnourished animals were

 discovered on her property by employees of the Humane Society

 acting as state animal protection agents.

¶2    Her appeal raises two novel issues of statutory construction:

 first, we consider whether, under section 35-42-107(7), C.R.S.

 2016, an animal protection agent who is an employee of the

 Humane Society is authorized to obtain a search warrant to

 investigate the suspected mistreatment of horses. We conclude that

 the agent exceeded her statutory authority but determine that

 suppression of the evidence seized in executing the warrant is not

 required.

¶3    Second, we consider the proper unit of prosecution in an

 animal cruelty case. Harris contends that her mistreatment of the

 twenty-two animals constituted one continuous course of conduct,

 and the district court’s entry of judgment on twenty-two counts

 therefore violated her rights under the Double Jeopardy Clause. We

 conclude, however, that under section 18-9-202, C.R.S. 2016,

 cruelty to each identified animal victim constitutes a separate and

 distinct offense.


                                   1
¶4    Harris raises a number of other claims, which we address in

 turn and reject. Accordingly, we affirm.

                           I.   Background

¶5    In December 2011, Harris’s neighbor called animal control to

 report a dead horse near the fence line of his property with Harris.

 Animal protection agent Sergeant Stephanie Garcia and a fellow

 officer, employees of the nonprofit corporation Humane Society of

 the Pikes Peak Region, responded to the call and discovered that

 the dead horse was visibly emaciated. Using binoculars, the agents

 observed additional horses, a donkey, and a llama on Harris’s

 property, all of which also appeared malnourished.

¶6    Based on the condition of the animals, Sergeant Garcia sought

 a search warrant (the horse warrant) for Harris’s ranch to

 investigate possible animal cruelty. During the search, conducted

 on January 6, the animal protection agents and accompanying law

 enforcement officers discovered a recently deceased donkey that,

 like the previously discovered deceased horse, appeared drastically

 underfed. About one-third of the horses on the property similarly

 showed signs of starvation.




                                   2
¶7      The officers also discovered a number of dogs showing signs of

 neglect: many of them appeared severely malnourished, and they

 did not appear to have adequate care or shelter. However, the

 horse warrant only allowed the agents to search for and seize

 abused livestock. Based on her observations of the dogs, Sergeant

 Garcia obtained a second warrant (the dog warrant) to search for

 and seize mistreated domestic dogs, which was executed that same

 day.

¶8      Harris was charged with fifteen counts of cruelty to animals

 (second offense)1 and two counts of aggravated cruelty to animals

 for needlessly killing an animal (case 12CR27).

¶9      Approximately three weeks later, on January 27, the same

 neighbor who had made the initial report informed animal control

 that three dead horses had been dragged onto his property. The

 neighbor later observed Harris and her brother attempting to drag

 the horses back onto her property. Sergeant Garcia responded to

 the call and, after observing the three dead horses, contacted




 1She was originally charged with seventeen counts of cruelty to
 animals, but two counts were dismissed before trial.

                                    3
  Harris. With Harris’s permission, Sergeant Garcia entered onto her

  property and discovered two additional dead horses.

¶ 10   Harris was charged in a separate case with five counts of

  aggravated cruelty to animals for needlessly killing the five horses

  (case 12CR222). The two cases were later consolidated for trial.

¶ 11   At trial, the prosecution presented multiple witnesses,

  including an expert in veterinary medicine, who were on the

  property during the search. All of these witnesses testified that the

  animals at issue in the case appeared severely malnourished and

  that there was no evidence of food on the property. To demonstrate

  this fact, the prosecution submitted numerous pictures depicting

  the visibly emaciated animals.

¶ 12   Harris’s theory of defense was that the horses were

  malnourished due to excess sulfates in the water. She insisted that

  she was regularly feeding her horses and justified the absence of

  any food on the ranch by explaining that she procured hay from a

  neighbor on a daily basis. In support of this defense, Harris

  presented evidence that a test had revealed high sulfate levels in

  her well water, and an expert witness who opined that this level of

  sulfates in the water could cause horses to be malnourished.


                                    4
¶ 13   The jury convicted Harris on all counts. In a bifurcated

  proceeding, the court determined that the fifteen animal cruelty

  convictions counted as a second offense due to Harris’s prior

  misdemeanor convictions for animal cruelty in 2007. The court

  sentenced Harris to concurrent ten-year terms of probation for all

  counts of conviction in case 12CR27. On the five aggravated animal

  cruelty counts in case 12CR222, the court sentenced Harris to

  three years in the custody of the Department of Corrections, to run

  concurrently to each other and to her sentences in 12CR27.

                        II.   The Search Warrants

¶ 14   In the district court, Harris moved to suppress all evidence

  obtained from the search on the grounds that the animal protection

  agents were not statutorily authorized to obtain a livestock warrant

  and that both warrants lacked probable cause. She renews that

  argument on appeal.

¶ 15   We agree that the animal protection agent exceeded her

  statutory authority in procuring the horse warrant. However, we

  reject Harris’s argument that the warrants were otherwise deficient

  because they were not supported by probable cause. Based in part

  on this latter determination, we conclude that the statutory


                                    5
  violation does not implicate constitutional concerns and, therefore,

  does not require suppression of any evidence obtained from the

  search. Accordingly, we affirm the trial court’s denial of the motion

  to suppress. See People v. Aarness, 150 P.3d 1271, 1277 (Colo.

  2006) (we may affirm the district court on any grounds supported

  by the record).

                A.   Authority to Obtain the Horse Warrant

¶ 16     Harris contends that, although Sergeant Garcia is a peace

  officer under the Animal Protection Act, because she is an employee

  of a nonprofit organization, she was not statutorily authorized to

  investigate cases of cruelty to livestock.

¶ 17     The People respond that Harris raised this issue for the first

  time on appeal, but our review of the record establishes that

  Harris’s counsel argued the issue at the hearing on the motion to

  suppress evidence.2 Accordingly, the claim of error is preserved.




  2   Defense counsel stated:

              And there’s no response by the People denying
              the limitations that are set out in the Animal
              Protections Act, 35-42-107, Paragraph 7,
              where it says, ‘Agents authorized to investigate
              cases of livestock shall be employees of

                                      6
¶ 18   Ordinarily, in reviewing the trial court’s ruling on a motion to

  suppress evidence, we are presented with a mixed question of fact

  and law and apply a dual standard of review, deferring to the

  factual findings and reviewing legal conclusions de novo. People v.

  Vaughn, 2014 CO 71, ¶ 9. Here, Harris’s contention raises an issue

  of statutory construction, and thus we review her claim de novo.

  People v. Chavez-Barragan, 2016 CO 16, ¶ 9.

¶ 19   Our primary duty in interpreting statutes is to give full effect

  to the intent of the General Assembly. Ryan Ranch Cmty. Ass’n v.

  Kelley, 2014 COA 37M, ¶ 39, aff’d, 2016 CO 65. To determine

  legislative intent, we look first to the plain language of the statute.

  State v. Nieto, 993 P.2d 493, 500 (Colo. 2000). When the language

  of a statute is clear, we apply the statute as written. Id.

¶ 20   Under section 35-42-107, the Colorado Commissioner of

  Agriculture may appoint animal protection agents, who are

  designated as peace officers. These agents may be employees of the

  state, nonprofit corporations, municipal corporations, counties,




             division of agriculture, the brand inspector,
             and the sheriffs.’ We don’t have that here.

                                      7
  cities, cities and counties, or any other local governmental entity or

  political subdivision of the state. § 35-42-107(2).

¶ 21   Harris does not dispute that Sergeant Garcia was properly

  commissioned as an animal protection agent even though she was

  an employee of the Humane Society, a private nonprofit

  organization. She contends, though, that under section

  35-42-107(7), only state employees may investigate livestock cases.

¶ 22   Subsection 107(7) specifies that “[a]gents authorized to

  investigate cases involving livestock shall be employees of the

  division or the division of brand inspection of the department or any

  sheriffs when appointed and within their jurisdiction.” In

  construing this provision, we must look first to the plain language

  of the statute, Nieto, 993 P.2d at 500, which indicates that agents

  who investigate livestock cases “shall” be specifically designated

  public officials. “It is axiomatic that the term ‘shall’ is usually

  interpreted to make the provision in which it is contained

  mandatory.” Estate of Guido v. Exempla, Inc., 2012 COA 48, ¶ 25;

  see also Hillebrand Constr. Co. v. Worf, 780 P.2d 24, 25 (Colo. App.

  1989) (the term “shall” connotes a mandatory requirement). Thus,

  under the plain language of the statute, the provision restricts the


                                      8
  investigation of livestock cases to employees of the Division of

  Agriculture, brand inspectors, and sheriffs.

¶ 23   This interpretation of the provision’s plain language comports

  with other standards applicable to investigations involving livestock.

  Because livestock generally have greater economic value than

  companion animals, the article provides certain protections for

  owners of livestock. For example, livestock cannot, under any

  circumstances, be seized without a court order. Compare

  § 35-42-109(2)(b), C.R.S. 2016 (livestock may only be seized

  pursuant to a court order, even when the animal’s life or health is

  endangered), with § 35-42-109(2)(a) (companion animals may be

  seized whenever the animal’s life or health is endangered).

¶ 24   Our interpretation insures that owners of livestock have a

  broader remedy against agents who commit negligence or

  misconduct. The state may disclaim liability for the conduct of

  animal protection agents employed by nonprofit organizations, see

  § 35-42-107(3), but it is liable for the conduct of the designated

  public officials. We believe the legislature’s mandate that animal

  protection agents who seize livestock shall be employees indicates




                                    9
  an intent that the state be accountable for the misdeeds of agents

  entrusted with livestock investigations.

¶ 25   The People insist that section 34-42-107(7) does not limit the

  animal protection agents who are authorized to investigate

  livestock; rather, it confers employment status on those agents.

  But they offer no support for this novel interpretation, and this

  construction does not comport with the plain language of the

  statute or its purpose. See Tatum v. Basin Res., Inc., 141 P.3d 863,

  871 (Colo. App. 2005) (“Courts may not interpolate into a statute

  words that it does not contain, or extract a meaning which is not

  expressed by it.”). Accordingly, we reject this reading of the statute.

¶ 26   Thus, because Sergeant Garcia is an employee of a nonprofit

  corporation, she was not authorized to investigate livestock cases.

  And the People do not dispute that the horses at issue are livestock.

  Therefore, we conclude that Sergeant Garcia was not authorized to

  investigate Harris’s suspected mistreatment of the horses or to

  obtain the horse warrant.

                B.    Remedy for the Statutory Violation

¶ 27   Next, we must decide the appropriate remedy for this violation.

  Both parties assume that, if Sergeant Garcia had no authority to


                                    10
  obtain the horse warrant, the search necessarily violated Harris’s

  Fourth Amendment right to be free from unreasonable searches and

  seizures. On this basis, Harris contends that the exclusionary rule

  applies, and thus the evidence obtained during the search should

  have been suppressed. The People maintain that the evidence was

  properly admitted under the “good faith exception” to the

  exclusionary rule, as codified in section 16-3-308(1), C.R.S. 2016.

  We reject both contentions.

¶ 28   We conclude that, although Sergeant Garcia was not

  authorized to obtain the horse warrant, the statutory violation did

  not amount to a constitutional violation. Accordingly, the

  exclusionary rule does not apply and the evidence was properly

  admitted at trial.

¶ 29   “[T]he exclusionary rule is a judicially created doctrine whose

  sole purpose is to deter future Fourth Amendment violations.”

  People v. Marko, 2015 COA 139, ¶ 150. Violations of statutory

  provisions, though, are not per se violations of the Fourth

  Amendment. People v. Hamilton, 666 P.2d 152, 156 (Colo. 1983).

  Thus, before employing the exclusionary rule as a remedy, we must

  determine whether there was a constitutional violation, rather than


                                   11
  a mere statutory violation. See People v. Bowers, 716 P.2d 471, 473

  (Colo. 1986) (“[S]uppression of evidence is a drastic remedy and is

  generally confined to violations of constitutional rights.”); People v.

  Casillas, 2015 COA 15, ¶ 19 (“A statutory violation does not

  ordinarily trigger suppression of evidence because suppression ‘is

  designed to effectuate guarantees against deprivation of

  constitutional rights.’” (quoting People v. McKinstry, 843 P.2d 18, 20

  (Colo. 1993))) (cert. granted May 16, 2016).

¶ 30   Harris contends, or rather assumes, that the horse warrant

  was constitutionally deficient because Sergeant Garcia was not

  authorized to obtain it. But to be valid under both the United

  States and Colorado Constitutions, a warrant must meet three

  requirements: (1) it must have been issued by a neutral,

  disinterested magistrate; (2) those seeking the warrant must have

  demonstrated to the magistrate their probable cause to believe that

  the evidence sought would aid in a particular apprehension or

  conviction for a particular offense; and (3) the warrant must

  particularly describe the things to be seized, as well as the place to

  be searched. People v. Pacheco, 175 P.3d 91, 94 (Colo. 2006);




                                     12
  Marko, ¶¶ 145-46; see also Bowling v. Rector, 584 F.3d 956, 969

  (10th Cir. 2009).

¶ 31   Based on these requirements, Sergeant Garcia’s acting beyond

  her statutory authority when she obtained the horse warrant has

  no bearing on the constitutionality of the warrant and related

  search. See Bowling, 584 F.3d at 968 (warrant was constitutional

  even though officer acted beyond his statutory authority when he

  applied for it); United States v. Freeman, 897 F.2d 346, 348 (8th Cir.

  1990) (A limited-authority officer’s conduct in excess of his

  statutory jurisdiction is an example of “procedural violations which

  do not implicate the constitutional values of probable cause or

  description with particularity of the place to be searched and items

  to be seized.”). Whether or not she exceeded her statutory authority

  is simply unrelated to the core constitutional concerns of a neutral

  magistrate, probable cause, and particularity. Indeed, this

  statutory violation “is not, without more, significantly relevant to

  our Fourth Amendment analysis.” Bowling, 584 F.3d at 967.

¶ 32   Accordingly, if the horse warrant procured by Sergeant Garcia,

  although obtained in excess of her statutory authority, meets the

  three requirements of a neutral magistrate, probable cause, and


                                    13
  particularity, there is no constitutional violation. While Harris does

  not contest that the first and third requirements were met, she does

  contend that the warrants were not supported by probable cause.

¶ 33   An affidavit establishes probable cause if the affidavit contains

  “sufficient facts to warrant a person of reasonable caution to believe

  that contraband or evidence of criminal activity is located at the

  place to be searched.” People v. Miller, 75 P.3d 1108, 1112 (Colo.

  2003). In determining whether probable cause exists, a judge must

  look to the totality of the circumstances and make a “practical,

  commonsense decision” as to whether there is a fair probability that

  a search will reveal contraband or evidence of a crime. People v.

  Scott, 227 P.3d 894, 897 (Colo. 2010) (quoting Pacheco, 175 P.3d at

  94). A court reviewing the validity of a search warrant does not

  engage in de novo review but rather examines whether the

  magistrate had a substantial basis for concluding that probable

  cause existed. Pacheco, 175 P.3d at 94.

¶ 34   Here, probable cause clearly existed for the horse warrant.3

  The warrant affidavit stated that the affiant observed on Harris’s


  3Harris contends that this warrant stemmed from an illegal search
  on December 31, when the officers used binoculars to look into her

                                    14
  property several horses that appeared underfed because they had

  visible spines and pin bones, and a deceased horse that appeared

  malnourished because his “[r]ibs, spine, withers, loin, [and] pin

  bones are all visible.” The affiant further stated that, as a trained

  animal protection officer, these observations led her to believe that

  the animals were not being provided with adequate sustenance.

  She also noted that Harris had previously been convicted of animal

  cruelty for neglecting livestock and domestic animals, and that

  there is “a long history of animal neglect” on this property,

  supporting the inference that the observed malnourished horses

  were not merely sick or old. Cf. People v. Bustam, 641 P.2d 968,

  971-72 (Colo. 1982) (knowledge of prior criminal record, in addition

  to other facts, supported probable cause for warrant on new

  instance of the same crime).

¶ 35   Given that the crime of animal cruelty can be established by

  demonstrating that defendant’s animals were not provided sufficient

  sustenance and care, these facts provide a substantial basis for the

  pastures from a neighboring property. However, this action was not
  a search under the Fourth Amendment. See People v. Oynes, 920
  P.2d 880, 883 (Colo. App. 1996) (officers did not conduct a search
  by looking into the defendant’s brightly lit home while standing in
  an open field using binoculars).

                                    15
  judge to have found probable cause that the crime of animal cruelty

  was occurring on the property. Accordingly, the horse warrant was

  constitutionally sufficient.4

¶ 36   In the absence of a constitutional violation, suppression of

  evidence is the appropriate remedy only if the statutory violation

  was “willful and recurrent.” People v. Lancaster, 2015 COA 93,

  ¶ 22. The record does not support a conclusion that this violation

  was willful and recurrent. People v. Wolf, 635 P.2d 213, 218 (Colo.

  1981).

            III.   Unit of Prosecution in Animal Cruelty Cases


¶ 37   Harris was convicted of fifteen counts of animal cruelty

  (second offense) and seven counts of aggravated animal cruelty.

  She contends that the court violated section 18-1-408(1)(e), C.R.S.

  2016, and double jeopardy principles by entering judgment and

  imposing sentence on each count of conviction for what amounted

  to a single course of conduct. We review these questions of law de


  4 We also reject Harris’s contention that the dog warrant lacked
  probable cause. The affidavit detailed the poor conditions in which
  the dogs were found, including the lack of adequate food, shelter,
  and water; that they were thin; and “[o]ne dog that was emaciated
  was observed eating the carcass of [a] dead donkey.”

                                    16
  novo. See People v. Reed, 2013 COA 113, ¶ 69 (we review district

  court’s interpretation of sentencing statutes de novo); People v.

  Arzabala, 2012 COA 99, ¶ 19 (de novo review applies to double

  jeopardy claims).

¶ 38   Under section 18-1-408 — entitled “Prosecution of multiple

  counts for same act” — a defendant cannot be convicted of more

  than one offense if “[t]he offense is defined as a continuing course of

  conduct and the defendant’s course of conduct was uninterrupted,

  unless the law provides that specific periods or instances of such

  conduct constitute separate offenses.” § 18-1-408(1)(e).

¶ 39   The statute is designed to prevent the problem of “multiplicity”

  — the charging of multiple counts and the imposition of multiple

  punishments for the same criminal conduct. People v. Borghesi, 66

  P.3d 93, 98 (Colo. 2003). The vice of multiplicity is that it may lead

  to multiple sentences for the same offense and thereby implicate

  double jeopardy protections. Woellhaf v. People, 105 P.3d 209, 214

  (Colo. 2005).

¶ 40   If a defendant is simultaneously prosecuted for distinct

  offenses under the same statute, as Harris was here, to determine

  whether the defendant’s rights against double jeopardy were


                                    17
  violated, a reviewing court must resolve (1) whether the unit of

  prosecution prescribed by the legislature permits the charging of

  multiple offenses and (2) whether the evidence in support of each

  offense justified the charging of multiple offenses and the

  imposition of multiple sentences. See Quintano v. People, 105 P.3d

  585, 590 (Colo. 2005); Woellhaf, 105 P.3d at 215.

¶ 41   “Unit of prosecution” refers to the extent to which the relevant

  statute permits the prosecution to separate the defendant’s conduct

  into discrete acts for purposes of prosecuting multiple offenses.

  Quintano, 105 P.3d at 590. The determination of the proper unit of

  prosecution in this case turns on whether we construe the statute

  as designed primarily to protect property interests or primarily to

  protect the animals themselves.

¶ 42   If we view animal cruelty as primarily an offense against

  property, then Harris committed a single offense by injuring or

  destroying the animals, much like the defendant who commits a

  single offense by destroying various items of personal property of

  another. See, e.g., People v. Feldscher, 380 N.W.2d 50, 51-52 (Mich.

  Ct. App. 1985) (unit of prosecution in destruction of property case

  was single incident of destroying property of another person,


                                    18
  regardless of how many items of property were destroyed); see also

  People v. Harris, 139 Cal. Rptr. 778, 786 (Cal. Ct. App. 1977)

  (defendants charged with receiving various stolen items could be

  convicted only of one count of receipt of stolen property). But if we

  view animal cruelty as an offense against a sentient being that the

  legislature is trying to protect from needless pain and suffering,

  Harris committed twenty-two separate offenses. See Borghesi, 66

  P.3d at 98 (armed robbery statute is designed primarily to protect

  people, not property, and therefore each victim supported a

  separate count of armed robbery).

¶ 43   To determine the unit of prosecution, we look to the statute.

  Arzabala, ¶ 23. As already explained, in construing a statute, we

  must discern and effectuate the intent of the legislature based

  primarily on the plain and ordinary meaning of the statutory

  language. Id.

¶ 44   The plain language of section 18-9-202 suggests that the unit

  of prosecution is “an animal.” As relevant here, a person commits

  animal cruelty if he or she “mistreats or neglects any animal . . . or,

  having the charge or custody of any animal, fails to provide it with

  proper food, drink, or protection from the weather consistent with


                                    19
  the species, breed, and type of animal involved.” § 18-9-202(1)(a).

  And, under subsection (1)(b) a person commits aggravated cruelty

  to animals if he or she “knowingly tortures, needlessly mutilates, or

  needlessly kills an animal.” The phrases “any animal” and “an

  animal” suggest that a person commits a separate offense for each

  animal that is mistreated or neglected, deprived of adequate

  sustenance, or killed. See Borghesi, 66 P.3d at 98 (robbery

  statute’s reference to a singular victim suggests that the legislature

  intended to create a separate offense for each person against whom

  the defendant uses force and intimidation).

¶ 45   Moreover, whether conduct constitutes an offense is

  dependent upon the particular species, breed, or type of animal

  involved in the criminal act. This provision emphasizes that the

  specific mistreated animal is the subject of the offense.

¶ 46   Importantly, in prohibiting the killing or abuse of “any” or “an”

  animal, the statute makes clear that a person can be charged with

  mistreating his own animal or a stray animal, demonstrating that

  property law principles do not underlie the statute’s purpose. And

  we note that the statutes appear in the section of criminal laws




                                    20
  devoted to “offenses against public peace, order, and decency”

  rather than the section involving “crimes against property.”

¶ 47   In our view, the language of the statute demonstrates that the

  legislature perceived animal cruelty not as an offense against

  property but as an offense against the individual animal.

¶ 48   This interpretation is consistent with the evolution of animal

  cruelty laws in the United States. Animal cruelty was not a crime

  under common law. See McCausland v. People, 58 Colo. 303, 305,

  145 P. 685, 686 (1914). Early animal cruelty laws were designed to

  protect the property interests of owners and did not restrict what an

  owner could do to his or her own animals. See David Favre, Living

  Property: A New Status for Animals Within The Legal System, 93

  Marq. L. Rev. 1021, 1027 (2010).5

¶ 49   But by the end of the nineteenth century, many states had

  enacted laws that reflected society’s acceptance of the idea that

  animals had an inherent right to be free from unnecessary pain and

  suffering and that the legal system should recognize that right.

  5 An 1846 Vermont law, for example, made it unlawful for a person
  to “wil[l]fully and maliciously kill, wound, maim or disfigure any
  horse, or horses, or horse kind, cattle, sheep, or swine, of another
  person.” Act of Oct. 23, 1846, no. 34, § 2, 1846 Vt. Acts & Resolves
  35 (emphasis added).

                                   21
  See, e.g., Grise v. State, 37 Ark. 456, 456, 459 (1881) (Statute

  making it unlawful to needlessly mutilate or kill “any living

  creature” was enacted to “protect some abstract rights in all that

  animate creation . . . from the largest and noblest to the smallest

  and most insignificant.”); Stephens v. State, 3 So. 458, 458 (Miss.

  1888) (Statute making it unlawful for person to abuse certain

  animals, “whether they belong to himself or another,” is “for the

  benefit of animals, as creatures capable of feeling and suffering, and

  it was intended to protect them from cruelty, without reference to

  their being property.”).6

¶ 50   Colorado enacted such a statute in 1889; the supreme court

  determined that the law precluded members of a country club from

  trapping, then releasing and shooting, doves for their amusement.

  See Waters v. People, 23 Colo. 33, 46 P. 112 (1896). The court

  observed that animal cruelty laws had evolved as society gained a

  greater understanding of animals’ capacity for pain and suffering:

  6 Grise v. State, 37 Ark. 456 (1881), was still a sign of its times: the
  court cautioned against construing the statute to lead to absurd
  results, like punishing a person for such petty offenses as
  “impal[ing] a butterfly” or “drown[ing] a litter of kittens.” Id. at 459;
  see also State v. Pierce, 7 Ala. 728, 731 (1845) (offense against
  animals could be prosecuted as “malicious mischief” but only if it
  could be proved that the animal killed was the property of another).

                                     22
¶ 51   It is of common knowledge that within the past few years, as

  incident to the progress of civilization, and as the direct outgrowth

  of that tender solicitude for the brute creation which keeps pace

  with man’s increased knowledge of their life and habits, laws, such

  as the one under consideration, have been enacted by the various

  states having the common object of protecting these dumb

  creatures from ill treatment by man. Id. at 35, 46 P. at 113.7

¶ 52   As states move away from property-law-based principles,

  many animal cruelty statutes now explicitly define the unit of

  prosecution as each animal victim. See Alaska Stat. § 11.61.140(b)

  (2016) (“Each animal that is subject to cruelty to animals . . . shall

  constitute a separate offense.”); Ark. Code Ann. § 5-62-103 (2016)

  (“[E]ach alleged act . . . of cruelty to animals committed against

  more than one . . . animal may constitute a separate offense.”); La.

  Stat. Ann. § 14:102.1(A)(3) (2016) (“[I]f more than one animal is

  subject to an act of cruel treatment . . . , each act shall constitute a

  separate offense.”); Mont. Code Ann. § 45-8-211(2)(c) (2016)


  7 The statute made it a crime for any person to “torture[],
  torment[], . . . or needlessly mutilate[] or kill[] . . . any animal.”
  Waters v. People, 23 Colo. 33, 34, 46 P. 112, 113 (1896) (quoting
  Mills’ Ann. Stat. § 104 (1891)).

                                     23
  (“[W]hen more than one animal is subject to cruelty to animals,

  each act may comprise a separate offense.”); Wyo. Stat. Ann.

  § 6-3-203(k) (2016) (“Each animal affected by the defendant’s

  conduct may constitute a separate count . . . under this section.”);

  see also Cal. Penal Code § 597(f) (West 2016) (“[E]ach act of

  malicious and intentional maiming, mutilating, or torturing a

  separate specimen of [endangered species or protected animal] is a

  separate offense.”); 18 Pa. Cons. Stat. § 5511(e.1) (2016) (“A person

  who violates this subsection on a second or subsequent occasion

  commits a misdemeanor of the third degree for each equine animal

  transported.”); State v. Helmbright, 990 N.E.2d 154, 164 (Ohio Ct.

  App. 2013) (rejecting property law principles and holding that

  animal cruelty statute, like domestic violence law, creates a

  chargeable offense for each “victim of a defendant’s conduct”).

¶ 53   Based on the language and purpose of section 18-9-202, we

  join those states that have delineated the unit of prosecution in

  animal cruelty cases as each animal abused or killed. Accordingly,

  we conclude that the unit of prosecution permits the charging of

  multiple offenses.




                                   24
¶ 54   Nonetheless, Harris argues that the conduct underlying her

  convictions was not a series of discrete and distinct criminal acts

  but instead a single course of conduct that resulted in the death or

  poor health of a number of animals. In light of our conclusion that

  the unit of prosecution is an animal, we have little difficulty in

  further concluding that the prosecution proved twenty-two factually

  distinct offenses. See People v. Abiodun, 111 P.3d 462, 470 (Colo.

  2005) (“[F]actual distinctness is ultimately a function of the

  legislature’s definition of the crime itself — the legislature’s choice

  of an allowable unit of prosecution.”).

¶ 55   To determine whether offenses are factually distinct, courts

  consider whether the acts occurred at different times and were

  separated by intervening events; whether there were separate

  volitional acts; and factors such as temporal proximity, the

  defendant’s intent, and the number of victims. People v. McMinn,

  2013 COA 94, ¶ 22.

¶ 56   While Harris’s conduct in mistreating the animals occurred

  over the same period of time and consisted of the same general acts,

  each of the charged offenses had a different, identifiable animal

  victim. We conclude that the existence of multiple victims created


                                     25
  factually distinct offenses. See People v. Grant, 30 P.3d 667, 670

  (Colo. App. 2000) (section 18-1-408(3) not applicable where offense

  involved multiple victims), aff’d, 48 P.3d 543 (Colo. 2002). And, as

  we have explained, the evidence supported the jury’s verdict that

  each of the identified animals had been mistreated.

¶ 57    We therefore reject Harris’s claim that her sentence violated a

  statutory or constitutional prohibition against multiple convictions

  or punishments for a single offense.

                         IV.   Other Contentions

   A.    Sufficiency of the Evidence of Aggravated Cruelty to Animals

¶ 58    Harris contends that there was insufficient evidence to convict

  her of the seven counts of aggravated cruelty to animals for

  needlessly killing an animal. She insists that there was no evidence

  that definitively proved that the horses died from starvation, and

  therefore the jury could not convict her on these counts. We are

  not persuaded.

¶ 59    On a challenge to the sufficiency of the evidence, we review the

  record de novo to determine whether the evidence, viewed as a

  whole and in the light most favorable to the prosecution, is both

  “substantial and sufficient” to support the defendant’s guilt beyond


                                    26
  a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo.

  2005). In applying this test, “we must give the prosecution the

  benefit of every reasonable inference that might fairly be drawn

  from the evidence.” People v. Atencio, 140 P.3d 73, 75 (Colo. App.

  2005). And we will not disturb the fact finder’s determinations of

  witness credibility and the weight to be given to the evidence.

  People v. McIntier, 134 P.3d 467, 471 (Colo. App. 2005).

¶ 60   A person commits the crime of aggravated cruelty to animals

  if, as relevant here, she “needlessly kills an animal.”

  § 18-9-202(1.5)(b).

¶ 61   Harris contends that there was insufficient evidence to prove

  that she actually killed the animals, and that they did not otherwise

  die of natural causes. While we agree that there was no direct

  evidence that the horses died because Harris did not feed them,

  there was substantial circumstantial evidence from which the jury

  could have drawn this inference and reached this conclusion

  beyond a reasonable doubt. See People v. Medina, 51 P.3d 1006,

  1013 (Colo. App. 2001) (“[I]n determining sufficiency the law makes

  no distinction between direct and circumstantial evidence.”), aff’d

  sub nom. Mata-Medina v. People, 71 P.3d 973 (Colo. 2003); cf.


                                    27
  People v. Strohm, 185 Colo. 260, 268, 523 P.2d 973, 977 (1974)

  (cause of death can be established by circumstantial evidence).

¶ 62   First, it is uncontroverted that the horses were malnourished.

  Dr. Gary Mason, who testified as an expert in veterinary medicine

  and veterinary pathology, tested femur bones recovered from nine

  deceased animals discovered during this investigation. According to

  Dr. Mason, all seven of the bones susceptible to testing8 showed a

  loss of fat in the bone marrow. This fat loss is “the end stage of

  inability to acquire enough energy from the diet. . . . It’s the end

  result of insufficient energy intake, and that fat is the last in the

  body to be metabolized in order to maintain life.” He testified that

  the fat loss indicates that “[t]here is some condition which is long

  term in nature that’s required those animals to use marrow fat to

  stay alive.” He described the condition as a “chronic negative

  energy balance.” While Dr. Mason could not definitively determine

  the cause of this chronic imbalance, he testified that it could be the

  result of starvation and lack of proper feeding.




  8Two of the femurs submitted were too old and dried out to
  analyze.

                                     28
¶ 63   In addition to the scientific evidence of malnutrition, there was

  considerable testimony that the animals appeared emaciated.

  Veterinarian Marvin Hamann, who was present during the

  searches, testified that the dead horse and donkey discovered on

  January 6 were “emaciated” and “basically skin and bones.”

  Similarly, he testified that the additional dead horses discovered on

  January 27 were “completely emaciated and just essentially skin

  and bones.”

¶ 64   Further, there was sufficient evidence from which the jury

  could determine that the horses were malnourished because they

  were not properly fed. Dr. Hamann, who testified as an expert in

  veterinary medicine,9 explained that he checked the property

  looking for a feed source, but “[t]here was basically no feed on the

  property,” even though one would need between seven and eight

  hundred pounds of hay per day to feed the number of animals

  found on the ranch. He further testified that there were no

  remnants of feed or hay, which he would expect to see if the


  9 The record reflects that the People moved to have Dr. Hamann
  qualified as an unspecified “expert”; however, the foundation for
  this qualification was entirely based on his veterinary practice with
  cattle and horses.

                                    29
  animals were being fed regularly. Not only was there no feed on the

  property, but Dr. Hamann also testified that the ranch did not have

  sufficient grass on which the horses could graze. A multitude of lay

  witnesses present during the January 6 search confirmed that there

  was little to no food on the property and echoed Dr. Hamann’s

  observations that there were no food remnants or grass for grazing.

¶ 65   Based on these observations, Dr. Hamann concluded that the

  horses were “malnourished because of lack of food available.”

¶ 66   Finally, there was sufficient evidence from which the jury

  could conclude that the horses died of malnutrition. Dr. Hamann

  testified that chronic malnutrition eventually leads to death. And

  Dr. Mason described the horses’ bone marrow condition as the “end

  stage” of the animal’s inability to obtain sufficient energy, and that

  they had to use the fat in the bone marrow to “stay alive” and

  “maintain life.”

¶ 67   Harris maintains that because Dr. Mason could not rule out

  other causes of malnutrition, such as disease or toxins in the water,

  there was insufficient evidence to prove that her conduct caused the

  animals’ deaths. But the prosecution is not obliged to disprove the

  defendant’s theories in order for the evidence to be deemed


                                    30
  sufficient under the substantial evidence test. Clark v. People, 232

  P.3d 1287, 1292 (Colo. 2010); see also State v. Angus, No. 05AP-

  1054, 2006 WL 2474512 (Ohio Ct. App. Aug. 29, 2006)

  (unpublished opinion) (holding animal cruelty conviction supported

  by sufficient evidence where veterinarian testified that emaciated

  condition of animals was due to lack of food, not whipworms, as the

  defendant contended). Moreover, Dr. Hamann testified that,

  contrary to Harris’s theory of defense, there was no evidence that

  the horses were affected by disease or sulfates in the water; he

  explained that if the horses were malnourished because of water

  sulfates, there would have been evidence of diarrhea on the ranch,

  and there was none.

¶ 68   Accordingly, we conclude that a rational juror could find proof

  beyond a reasonable doubt that the horses died because Harris did

  not sufficiently feed them.

               B.   Sufficiency of the Charging Document

¶ 69   Harris argues that the charging documents filed in the two

  cases failed to charge an offense. She acknowledges that the

  information in each case tracked the statutory language of the




                                   31
offenses,10 but she insists that the charging documents also had to

allege the specific manner in which she killed the deceased animals;

the ways in which she mistreated the other animals; and the

definition of statutory terms, including “needless killing,”




10 In 12CR27, each of the cruelty to animals offenses was charged
identically, except that each count referred to a different animal by
its identifying number:

           A0973012. On or about January 6, 2012,
           [Harris] unlawfully, knowingly, recklessly, or
           with criminal negligence, tormented, or
           deprived of necessary sustenance, or allowed
           to be housed in a manner that resulted in
           chronic or repeated serious physical harm, or
           having the charge or custody of an animal
           failed to provide it with proper food, drink, or
           protection from the weather consistent with
           the species, breed and type of animal, or
           otherwise mistreated or neglected, or caused or
           procured the mistreatment or neglect of
           animals, namely: canine listed above.

In 12CR222, each of the five counts of aggravated cruelty to
animals was charged identically, except that each described a
different animal:

           On or about January 27, 2012, [Harris]
           unlawfully, feloniously, and knowingly
           tortured, needlessly mutilated, or needlessly
           killed an animal, namely: a white with brown
           leopard spot[s] Appaloosa horse; in violation of
           section 18-9-202(1.5)(b), C.R.S.


                                  32
  “necessary sustenance,” and “mistreated or neglected.” We review

  the sufficiency of the indictment de novo. McIntier, 134 P.3d at 470.

¶ 70   A charge is sufficient if it alleges sufficient facts to permit the

  accused to prepare an adequate defense and to assure that the

  defendant cannot be prosecuted again for the same crime. People v.

  Chavez, 730 P.2d 321, 325 (Colo. 1986). To that end, if the

  information identifies the essential elements of the crime charged, it

  is sufficient. People v. Melillo, 25 P.3d 769, 778 (Colo. 2001).

  Ordinarily, an information identifies the essential elements of the

  crime when it tracks the statutory language. Id.

¶ 71   Harris’s reliance on People v. Beruman, 638 P.2d 789 (Colo.

  1982), and People v. Donachy, 196 Colo. 289, 586 P.2d 14 (1978), is

  misplaced. In Beruman, the defendant was charged with failing to

  perform a duty imposed upon him by law in connection with his job

  as a social services caseworker. The indictment, though, did not

  inform the defendant of the duties he had failed to perform,

  preventing him from preparing a defense to the charge. Because

  the mandatory legal duty was not identified, the indictment was

  insufficient. 638 P.2d at 794. Likewise, in Donachy, the public

  official was charged with converting public money and property to


                                     33
  some unauthorized use, but the indictment did not provide any

  further information. The court found that the vagueness of the

  indictment did not sufficiently advise the defendant of the

  prohibited conduct. 196 Colo. at 292-93, 586 P.2d at 16-17.

¶ 72   But here, the indictment set forth the prohibited conduct —

  killing and mistreating specific animals by failing to provide

  necessary sustenance and care. The indictment in this case was

  sufficient to put Harris on notice of the charges against her and to

  allow her to prepare an adequate defense. See Melillo, 25 P.3d at

  778 (information was sufficient where it tracked statutory language

  but did not specify how the defendant committed the crime of

  sexual assault on a child); see also § 16-5-202(3), C.R.S. 2016 (“An

  information may be filed using the language of the statute . . . .”).

                         C.   Bifurcation of Trial

¶ 73   After the trial court granted the prosecution’s motion to

  consolidate cases 12CR27 and 12CR222, Harris filed a motion to

  bifurcate the trial. She argued that evidence of her prior

  misdemeanor convictions, alleged in the information to support

  each charge of animal cruelty (second offense), would be unduly

  prejudicial in her trial on the substantive animal cruelty offenses.


                                    34
  Initially, the trial court denied her motion. However, on the fourth

  day of trial, it reconsidered its ruling and announced that the

  animal cruelty charges would be determined by the jury and the

  existence of prior convictions would be determined separately by

  the court. The prosecution did not present evidence of the prior

  convictions to the jury.

¶ 74   On appeal, Harris contends that the trial court erred by

  initially denying her motion for bifurcation.11 We review the denial

  of a motion to bifurcate the trial for an abuse of discretion. See In

  re Marriage of Foottit, 903 P.2d 1209, 1211 (Colo. App. 1995). A

  trial court abuses its discretion when its decision is manifestly

  arbitrary, unreasonable, or unfair, or if its decision is based on an

  erroneous understanding or application of the law. People v.

  Casias, 2012 COA 117, ¶ 17.

¶ 75   Cruelty to animals is a class 1 misdemeanor; however, a

  second or subsequent conviction is a class 6 felony. See

  § 18-9-202(2)(b)(I). Under this statutory scheme, the prior

  11The People interpret Harris’s argument as a challenge to the
  court’s decision to consolidate the two cases. But Harris presents
  no argument with respect to the consolidation order and instead
  focuses exclusively on the alleged prejudice that flowed from the
  court’s denial of her bifurcation motion.

                                    35
  conviction is a sentence enhancer rather than a substantive

  element of the offense. See People v. Schreiber, 226 P.3d 1221,

  1223 (Colo. App. 2009) (prior conviction for indecent exposure was

  sentence enhancer, not element of offense, even though prior

  conviction raised offense from class 1 misdemeanor to class 6

  felony).

¶ 76   Bifurcated trials are preferred in prosecutions for second or

  subsequent offenses when the prior convictions are alleged as a

  basis for imposition of a harsher sentence and are relevant only to

  punishment. People v. Fullerton, 186 Colo. 97, 99, 525 P.2d 1166,

  1167 (1974). To avoid prejudice to the defendant in the initial

  determination of the issue of guilt, the trial court should conduct

  the proceedings in two stages and determine the collateral issue of

  enhanced punishment only after the jury has determined guilt on

  the substantive offense. Id.

¶ 77   We will assume, therefore, that the trial court abused its

  discretion by initially failing to grant Harris’s motion to bifurcate

  the proceedings. But the error requires reversal under the

  harmless error standard only if the error substantially influenced

  the verdict or affected the fairness of the trial. Hagos v. People,


                                     36
  2012 CO 63, ¶ 12. The trial court ultimately agreed to the

  bifurcation request; still, Harris contends that the damage had been

  done — the trial court had read the charging document to the jury

  at the beginning of trial, and the document repeatedly referenced

  her prior misdemeanor convictions for animal cruelty.

¶ 78   We do not agree that the court’s one-time reading of the

  information requires reversal. For one thing, there was no evidence

  presented that Harris had prior convictions. At the time it read the

  information to the jury, the court properly instructed the jurors that

  the information was not evidence. We generally presume that the

  jury understood and followed the court’s instructions. See People v.

  Manyik, 2016 COA 42, ¶ 40 (although prosecutor’s comments were

  improper, court had instructed the jury that lawyers’ arguments

  were not evidence and the court of appeals presumes jurors

  followed instructions). Additionally, the weight of the evidence

  against Harris was significant and it is unlikely that the mere

  reference to prior misdemeanor convictions substantially affected

  the verdict. As well, the court offered to give the jury a curative

  instruction, which defense counsel declined. See People v. Helms,

  2016 COA 90, ¶ 61 (denial of mistrial after introduction of prior bad


                                    37
  act evidence was not abuse of discretion where weight of admissible

  evidence was substantial and court offered to give curative

  instruction). Accordingly, the trial court did not commit reversible

  error by initially denying Harris’s bifurcation motion.

                       D.    CRE 404(b) Evidence

¶ 79   Harris contends that the trial court improperly admitted

  evidence of other bad acts under CRE 404(b). Harris challenges the

  testimony of two witnesses, Daryel McCurry and Brett Smith, both

  of whom testified regarding events and circumstances in 2007.12

  She contends that this testimony detailed previous misconduct and

  was not admitted for a proper purpose under Rule 404(b).

¶ 80   McCurry is a ranch hand who worked for Harris in the

  summer of 2007. He testified that during his time on the ranch,

  Harris owned approximately sixty horses, a third of which were in

  poor condition and did not appear adequately fed. Further, he

  explained that in his two months working on the ranch, there was

  12 In her briefs, Harris contends that the CRE 404(b) evidence
  relates to acts in both 2007 and 2009. On our review of the record,
  however, the only testimony relating to 2009 was that horses were
  not seized at that time. Further, while her opening brief purports to
  challenge the admission of her previous criminal convictions
  stemming from these incidents in 2007 and 2009, the trial court
  excluded all references to the convictions.

                                    38
  only one delivery of hay. McCurry stated that the horses fed on

  grass, but that there was not much grass around. During his two

  months on the ranch, McCurry never saw a farrier13 or veterinarian

  come out to the ranch. He also testified that he was present when

  animal protection agents came to the ranch in 2007.

¶ 81     Officer Smith is an animal protection agent who had been

  involved with Harris and her ranch since 2006. He testified that, in

  2007, animal protection agents seized nineteen horses from Harris’s

  ranch, seventeen of which were in very poor condition. He also

  described one of the victim horses as a horse they had

  contemplated seizing in 2007; he explained that in 2007, the horse

  was thin, but only moderately so. Officer Smith also identified

  several of the deceased horses as horses he had seen when he was

  previously on the property. Finally, Officer Smith testified that

  Harris had large quantities of pellet feed on the property in 2007,

  but not in 2012.

¶ 82     The court admitted this evidence for the limited purpose of

  proving “opportunity, mental culpability, knowledge, identity, or

  absence of mistake.”

  13   A farrier is person who trims and shoes horses’ hooves.

                                     39
¶ 83   Pursuant to CRE 404(b), evidence of other crimes, wrongs, or

  acts is inadmissible if its relevance depends on an inference that

  the person has a bad character and acted in conformity with that

  character. However, this evidence may be admissible for other

  purposes. CRE 404(b).

¶ 84   A trial court has substantial discretion to determine the

  admissibility of prior acts evidence, and such a determination will

  not be disturbed on appeal absent an abuse of that discretion.

  People v. Torres, 141 P.3d 931, 934 (Colo. App. 2006).

¶ 85   As an initial matter, much of the challenged testimony did not

  describe other “bad acts,” which would be subject to Rule 404(b).

  This includes Officer Smith’s testimony identifying the deceased

  horses as Harris’s, which was a contested issue at trial; his

  testimony that she used pellet feed in 2007, but that feed was not

  found on the property in 2012; and McCurry’s testimony about the

  condition of the ranch. Accordingly, Rule 404(b) is inapposite to the

  admissibility of this testimony. See People v. Greenlee, 200 P.3d

  363, 368 (Colo. 2009) (stating that evidence that does not comprise

  “conduct, do[es] not amount to a crime, and do[es] not reveal prior

  bad acts” does not implicate Rule 404(b)) (footnote omitted).


                                    40
¶ 86   Even if we assume that the remainder of the challenged

  testimony is subject to the limitations of Rule 404(b), we conclude

  that it was properly admitted. Evidence that animal protection

  agents previously seized horses in 2007, and that these horses were

  in poor condition and not being fed regularly, is logically relevant to

  a material fact: the evidence makes it less likely that, in 2012, the

  horses were suffering from sulfate poisoning and experiencing

  sudden weight loss, as Harris claimed. See CRE 401; Greenlee, 200

  P.3d at 366 (Evidence is relevant where it has “any tendency to

  make the existence of any fact that is of consequence to the

  determination of the action more probable or less probable than it

  would be without the evidence.” (quoting CRE 401)). It also

  supports the inference that Harris knew that infrequent feeding

  could negatively impact the health of her horses and that she

  disregarded this risk. See People v. Spoto, 795 P.2d 1314, 1318

  (Colo. 1990) (Rule 404(b) evidence must be logically relevant to a

  material fact).

¶ 87   Additionally, the logical relevance of this evidence is

  independent of the inference that Harris has a bad character, and

  that she acted in conformity with this character by neglecting her


                                    41
  horses. Rather, the evidence was admitted for the proper purpose

  of proving Harris’s mens rea; it demonstrates that Harris was aware

  of the potential consequences of sporadically feeding her horses,

  and it negates the argument that the horses were malnourished

  from some mistake or accident. See CRE 404(b) (permitting prior

  misconduct evidence to prove intent and absence of mistake or

  accident); People v. Davis, 218 P.3d 718, 729 (Colo. App. 2008)

  (Rule 404(b) evidence was properly admitted to show absence of

  mistake).

¶ 88   Finally, we conclude that the probative value of this evidence

  is not substantially outweighed by the danger of unfair prejudice.

  Spoto, 795 P.2d at 1318. The evidence presented at trial

  overwhelmingly established that the animals were malnourished

  and not properly maintained, and the only other possible

  explanation for this fact was some mistake or accident (sulfate

  poisoning, according to Harris). So the probative value of the

  evidence outweighs any potential prejudice. Cf. People v. McBride,

  228 P.3d 216, 227 (Colo. App. 2009) (probative value outweighed

  prejudice because prior bad acts were directly relevant to whether




                                   42
  the crime charged was intentional, as the prosecution contended, or

  accidental, as defendant claimed).

¶ 89      Accordingly, we perceive no error in the admission of the

  challenged evidence.

             E.    Exclusion of Photographs of Healthy Animals

¶ 90      At trial, Harris attempted to introduce, through her brother,

  photographs of all of the animals seized by the animal protection

  officers. The trial court admitted into evidence only those

  photographs depicting animals that were the subject of the criminal

  charges.

¶ 91      On appeal, Harris contends that the trial court erred in

  excluding the remaining photographs. The photographs of the

  nonvictim horses were relevant, she argues, because they would

  have established that some of the animals were in good condition,

  and the presence of healthy animals would have undercut the

  prosecution’s theory that she had systematically starved the

  animals on her ranch. We review the trial court’s evidentiary

  rulings for an abuse of discretion. People v. Clark, 2015 COA 44,

  ¶ 40.




                                      43
¶ 92   We agree with Harris that the condition of the other animals

  on the ranch was at least marginally relevant because that evidence

  would tend to make the prosecution’s theory that Harris did not

  feed her animals somewhat less probable. See CRE 401. And

  relevant evidence is generally admissible. CRE 402.

¶ 93   The court, though, did not exclude all evidence of the other

  animals’ condition: Dr. Hamann conceded that approximately two-

  thirds of the horses on the ranch were in either good condition or

  moderate condition and that only a third of the horses were in very

  poor condition. Likewise, the expert admitted that while some

  horses were dehydrated, others had normal hydration. Certain of

  the defense witnesses also testified about the animals’ condition at

  around the time of their seizure by the animal protection agents.

  That evidence was sufficient to support Harris’s argument that she

  was not systematically starving the animals on the ranch.

¶ 94   What the court did not allow was photographs of the horses

  and dogs that the witnesses had already characterized as being in

  good or moderate health. As to that specific evidentiary ruling, we

  cannot say that the trial court abused its discretion.




                                    44
¶ 95   Even relevant evidence may be excluded if its probative value

  is substantially outweighed by the danger of unfair prejudice,

  confusion of the issues, or misleading the jury, or by consideration

  of undue delay, waste of time, or needless presentation of

  cumulative evidence. CRE 403; People v. Salazar, 2012 CO 20,

  ¶ 16. As the trial court noted, the photographs were merely

  cumulative of the testimony that the nonvictim animals were in

  generally “ok” condition. We agree that, under those

  circumstances, the photos of animals already deemed to be healthy

  or moderately healthy had no additional probative value.

  Accordingly, we discern no abuse of discretion in the court’s

  exclusion of the photographs.

                          F.   Jury Instructions

¶ 96   Harris contends that the trial court erroneously rejected her

  tendered jury instructions defining various terms in the cruelty to

  animals statute and left the terms undefined. She insists that by

  failing to define the terms “needlessly killed,” “proper protection

  from weather conditions,” “proper drink,” “proper food,” and




                                    45
  “necessary sustenance,” the jury was left to define its own standard

  of care for the animals.14

¶ 97   It is within the sound discretion of the trial court to determine

  whether additional jury instructions that properly state the law

  should be submitted. People v. Esparza-Treto, 282 P.3d 471, 480

  (Colo. App. 2011).

¶ 98   When a term, word, or phrase in a jury instruction is one with

  which reasonable persons of common intelligence would be familiar,

  and its meaning is not so technical or mysterious as to create

  confusion in jurors’ minds as to its meaning, an instruction

  defining it is not required. People v. Thoro Prods. Co., 45 P.3d 737,

  745 (Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo. 2003).

¶ 99   Here, all of the undefined terms are common words the jury

  was capable of understanding, and there is no indication that the

  jury was confused by these terms. See People v. Allen, 657 P.2d

  447, 451 (Colo. 1983) (“[T]he language of the cruelty to animals

  statute may be readily comprehended and applied by jurors.”).


  14While Harris contends that the trial court erroneously failed to
  instruct the jury on the definition of “otherwise mistreated,” the
  court did instruct the jury on the statutory definition of
  mistreatment.

                                    46
  Thus, the court acted within its broad discretion when it declined to

  define these terms further. See Esparza-Treto, 282 P.3d at 480

  (“When a jury indicates no confusion about the meaning of such

  common phrases, the trial court’s failure to define such phrases

  specifically does not require a new trial.”).

                             V.    Conclusion

¶ 100   The convictions and sentences are affirmed.

        JUDGE DAILEY and JUDGE FURMAN concur.




                                     47
