                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                     PATRICIA ANN BUSH, Appellant.

                             No. 1 CA-CR 17-0087
                               FILED 5-17-2018


           Appeal from the Superior Court in Maricopa County
                      No. CR2015-002343-001 DT
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz, Angela Kebric Paton
Co-Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                              STATE v. BUSH
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


M O R S E, Judge:

¶1            Patricia Ann Bush appeals her convictions and sentences for
120 counts of cruelty to animals. She argues the trial court erred in denying
her motion to dismiss for vindictive prosecution. For the following reasons,
we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2             On October 10, 2014, Bush was cited for 12 misdemeanor
counts of animal cruelty.2 The State twice continued the pre-trial
conference in justice court so Bush could obtain counsel. On April 7, 2015,
Bush was still unrepresented, and the parties requested a bench trial. Ten
days later, the State, citing "the interests of justice[,]" successfully moved to
dismiss the Justice Court Case without prejudice.

¶3            On July 13, 2015, the grand jury issued an indictment that
included the 12 misdemeanor charges from the Justice Court case and
added 92 misdemeanor and 45 felony counts of animal cruelty. The
additional charges alleged offense dates of either December 11, 2014, or
February 3, 2015. All offenses related to diseased cats or cat corpses sheriff's
deputies found in Bush's residence on the dates alleged.3



1       We view the facts in the light most favorable to upholding the
verdicts. See State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing
State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).

2      For reasons not apparent from the record, the charges were brought
in three separate cases, although the alleged offenses occurred on the same
date and at the same location. For ease of reference, we refer to the three
cases collectively as the "Justice Court Case."

3     Thirty-four of the cats captured alive were subsequently euthanized
because of their poor health and fractious behavior.


                                       2
                              STATE v. BUSH
                            Decision of the Court

¶4           Bush subsequently moved to dismiss, arguing the additional
charges amounted to vindictive prosecution. In support of her motion,
Bush asserted sheriff's deputies improperly contacted her at home after she
was represented by counsel, and she claimed the prosecutor erroneously
informed the court that one of Bush's release conditions while the Justice
Court Case was pending included a prohibition against keeping cats in her
home. The court denied Bush's motion.

¶5           At the conclusion of the State's case in chief, the State agreed
to dismiss two counts, and the trial court granted Bush's motion for
judgment of acquittal relating to 26 counts. The jury found Bush not guilty
of two counts and guilty of the remaining counts. The court suspended
imposition of sentence and placed Bush on three years of supervised
probation.   Bush timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

¶6            Bush argues that the court erred in denying her motion to
dismiss. She contends that the State vindictively prosecuted her in violation
of her due process rights when, after she attempted to invoke her rights to
counsel and a trial, the State dismissed the Justice Court Case and
subsequently indicted her on additional, harsher charges.

¶7              A defendant can establish prosecutorial vindictiveness in one
of two ways. First, by showing actual vindictiveness with objective
evidence that a prosecutor acted to punish the defendant for exercising his
or her legal rights. State v. Mieg, 225 Ariz. 445, 447, ¶ 11 (App. 2010).
Second, as applicable here, by relying on "a presumption of vindictiveness
if the circumstances establish a 'realistic likelihood of vindictiveness.'" Id.
at 448 (quoting Blackledge v. Perry, 417 U.S. 21, 27 (1974)). We consider all
relevant circumstances in our determination of whether to apply a
presumption of vindictiveness. Id. at ¶ 15. In doing so, we bear in mind
that the pretrial decisions of prosecutors are entitled to "especially
deferential" judicial evaluation. Town of Newton v. Rumery, 480 U.S. 386, 397
n. 7 (1987); cf. United States v. Goodwin, 457 U.S. 368, 381 (1982) ("[A] change
in the charging decision made after an initial trial is completed is much
more likely to be improperly motivated than is a pretrial decision."). If a
defendant makes a prima facie showing that the decision to charge the
defendant was more likely than not attributable to prosecutorial
vindictiveness, then the burden shifts to the State to overcome the
presumption by presenting objective evidence of facts justifying the
prosecutor's action. Mieg, 225 Ariz. at 448, ¶ 12. We review a trial court's


                                       3
                              STATE v. BUSH
                            Decision of the Court

decision whether to dismiss a case on vindictive prosecution grounds for
an abuse of discretion. Id. at 447, ¶ 9.

¶8            The trial court properly denied Bush's motion to dismiss
because Bush failed to establish that a "realistic likelihood of vindictiveness"
motivated the State's decision to seek an indictment on animal cruelty
charges beyond those from the Justice Court Case. After the Justice Court
Case commenced, Bush continued to commit illegal acts of animal cruelty
by sheltering cats in her unsanitary home. The State's desire to prosecute
Bush for those acts does not amount to vindictiveness that violated Bush's
due process rights. See Mieg, 225 Ariz. at 448, ¶ 12 (noting "the acceptable
'vindictive' desire to punish [a defendant] for any criminal acts" does not
constitute "vindictiveness" that violates due process (quoting United States
v. Doran, 882 F.2d 1511, 1518 (10th Cir. 1989))). And, in light of the judicial
deference afforded a prosecutor's pretrial decision-making, the fact that
sheriff's deputies visited Bush's home after she was charged in the Justice
Court Case4 or the prosecutor's misstatement regarding Bush's release
conditions imposed by the justice court do not, as Bush argues, establish
vindictiveness. On this record we do not find the trial court abused its
discretion in denying the motion to dismiss on grounds of prosecutorial
misconduct.

¶9            The cases Bush relies upon do not compel a different result.
See Bordenkircher v. Hayes, 434 U.S. 357 (1978) (purported prosecutorial
vindictiveness in the context of plea bargaining process); United States v.
Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976) (vindictive prosecution
apparent when misdemeanor charge dismissed after defendant asserted his
right to trial and State reindicted with felony charge based on same
conduct); State v. Tsosie, 171 Ariz. 683 (App. 1992) (subsequently charging a
felony based on same conduct underlying original misdemeanor charge,
which was dismissed for a violation of speedy trial rights, held to be
vindictive prosecution). Here, the record is silent as to any plea
negotiations during the Justice Court Case, and the State reindicted Bush
with the original misdemeanor counts in addition to charges stemming


4      The record shows deputies visited Bush's home while the Justice
Court Case was pending, and before she was represented, to follow up on
the original investigation and to serve search warrants that led to the
additional charges. The record also establishes deputies went to Bush's
residence after the felony indictment issued to investigate ongoing
complaints by her neighbors of "an extreme smell" emanating from her
home. These later visits were not related to the charges in this case.


                                       4
                           STATE v. BUSH
                         Decision of the Court

from conduct different from the acts underlying the allegations in the
Justice Court Case.

                            CONCLUSION

¶10         Bush's convictions and sentences are affirmed.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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