March 16, 2020- State of New Mexico v. Debra Clopton, No. A-1-CA-37170

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37170	4
DEBRA CLOPTON,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	7
Mary Marlowe Sommer, District Judge	8
Hector H. Balderas, Attorney General	9
Eran Sharon, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Gregory B. Dawkins, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
BOGARDUS, Judge.	18
{1} 	Defendant 	Debra 	Clopton 	appeals 	her 	convictions 	for 	twenty-two	19
misdemeanor counts of cruelty to animals, in violation of NMSA 1978, Section 30-	20
18-1(B) (2007), and one misdemeanor count of practicing veterinary medicine	21
Court of Appeals of New Mexico
Filed 3/16/2020 9:38 AM

2
without a license, in violation of NMSA 1978, Section 61-14-18 (1999, amended	1
2017).	2
{2} 	Defendant raises seven issues on appeal,1 arguing (1) the multiple cruelty to	3
animals convictions subjected her to double jeopardy; (2) there was insufficient	4
evidence to support those convictions; (3) the district court improperly refused her	5
request for a jury instruction defining “negligently,” as that word is used in the	6
cruelty to animals statute; (4) the statute prohibiting the unlicensed practice of	7
veterinary medicine is unconstitutionally vague; (5) the district court improperly	8
limited her ability to testify and to cross-examine the expert witness at trial; (6) the	9
district court improperly found her competent to stand trial; and (7) she was denied	10
effective assistance of counsel at trial. Defendant further asserts that the cumulative	11
error in her jury trial warrants reversal. Finding no error, we affirm.	12
BACKGROUND	13
{3} 	The charges against Defendant came about when her neighbors complained	14
to the Santa Fe County Sheriff’s Office Animal Control Division about excessive	15
dog barking coming from her five-acre property. While responding to one of the	16
1At the outset, we remind Defendant that litigants are encouraged to limit the
number of issues they choose to raise on appeal in order to ensure that those
presented are adequately argued and are supported both by authority and properly
cited facts in the record. See Rio Grande Kennel Club v. City of Albuquerque, 2008-
NMCA-093, ¶¶ 54-55, 144 N.M. 636, 190 P.3d 1131 (“[W]e encourage litigants to
consider carefully whether the number of issues they intend to appeal will negatively
impact the efficacy with which each of those issues can be presented.”).

3
complaints, an animal control officer saw approximately twenty-one dogs in	1
Defendant’s yard. Defendant, who was trained in veterinary medicine, told the	2
officer that she was treating some of the dogs; he then informed her that since her	3
license to practice veterinary medicine had been revoked, she could not engage in	4
that treatment. He and the other officers with him left and prepared a warrant to	5
search the property. They coordinated with the Doña Ana County Animal Cruelty	6
Task Force to assist with a planned intervention at Defendant’s property.	7
{4} 	A week later, a team of law enforcement and animal control officers returned	8
to execute the warrant, further investigate the situation, and remove the dogs. When	9
the officers arrived, they saw eight dogs in the yard acting aggressively and fighting	10
one another, with the stronger dogs attacking the weaker ones. The officers captured	11
those dogs and put them in kennels.	12
{5} 	Wearing protective gear and respirators, the officers then entered Defendant’s	13
double-wide mobile home, where they found dozens more dogs that were acting	14
aggressively toward each other, as well as toward the officers. The officers observed	15
medicine, including rabies vaccines, in the house, along with medical equipment	16
commonly used by veterinarians. They saw trash and feces on the floors and detected	17
strong odors of feces, urine, and ammonia. One officer described the feces as	18
covering a majority of the floor and as having been stepped in and tracked	19
throughout the house by the dogs; he also said that the odor in the house burned his	20

4
eyes and, even with his respirator on, took his breath away. Some of the dogs inside	1
were emaciated, some were unable to stand and walk, some were suffering from	2
neurological conditions, and some were injured or otherwise disabled. There were	3
dogs in kennels too small for them that had no food or water. One officer said he	4
saw no bowls with dog food or water inside the house. At one point, some dogs were	5
trampled by a group of other dogs moving toward the back door; the door eventually	6
broke, and some dogs escaped.	7
{6} 	While the officers were inside, one of the members of the team, veterinarian	8
Patricia Norris, was examining the captured dogs in a mobile forensic van parked on	9
the property. After the dogs, forty-eight in all, were collected, they were taken to the	10
animal shelter, 	where Dr. 	Norris periodically checked on them. Some were	11
eventually euthanized and others were treated for illness and wounds.	12
{7} 	Defendant was arrested and charged with twenty-two counts of animal	13
cruelty, one for each of twenty-two dogs, and one count of practicing veterinary	14
medicine without a license. The jury returned guilty verdicts on all counts. For each	15
of the animal cruelty counts, the jury was instructed that, to find guilt, the State had	16
to prove beyond a reasonable doubt that (1) “Defendant negligently mistreated,	17
injured, killed without justification, or tormented [the particular dog associated with	18
the count];” or that (2) “Defendant abandoned or failed to provide necessary	19
sustenance to [that dog.]”	20

5
DISCUSSION	1
I. 	Defendant’s Twenty-Two Animal Cruelty Convictions Do Not Violate	2
Double Jeopardy	3
{8} 	Defendant first contends that the district court erred by not dismissing, under	4
principles of double jeopardy, all but one of her twenty-two convictions for animal	5
cruelty. She argues that she should not be “punished [twenty-two] times for the same	6
behavior.” The State disputes Defendant’s ultimate conclusion, but does not dispute	7
Defendant’s characterization that the same behavior underlies the convictions. We	8
therefore analyze this issue with an understanding that the convictions were based	9
on a single course of conduct engaged in by Defendant.	10
{9} 	The Fifth Amendment to the United States Constitution and Article II, Section	11
15 of the New Mexico Constitution protect defendants from “multiple punishments	12
for the same offense.” State v. Cooper, 1997-NMSC-058, ¶ 52, 124 N.M. 277, 949	13
P.2d 	660 	(internal 	quotation 	marks 	and 	citation 	omitted). 	Defendant’s 	case	14
constitutes one in the “unit of prosecution” line of double jeopardy-multiple	15
punishment cases; in each such case, “the defendant has been charged with multiple	16
violations of a single statute based on a single course of conduct.” State v. Ramirez,	17
2018-NMSC-003, ¶ 45, 409 P.3d 902 (internal quotation 	marks and 	citation	18
omitted). “The relevant inquiry” in a unit of prosecution case “is whether the	19
[L]egislature intended punishment for the entire course of conduct or for each	20
discrete act. The only basis for dismissal is proof that [the defendant] is charged with	21

6
more counts of the same statutory crime than is statutorily authorized.” 	Id.	1
(alteration, internal quotation marks, and citations omitted). “Our review of whether	2
a double jeopardy violation occurred is a legal question subject to de novo review.”	3
State v. Lente, 2019-NMSC-020, ¶ 14, 453 P.3d 416.	4
{10} 	To determine whether Defendant’s right to freedom from double jeopardy was	5
infringed, we ask whether the Legislature intended for a person who engages in a	6
single course of conduct proscribed by the animal cruelty statute to receive one	7
conviction and sentence per animal affected by that conduct—or one conviction and	8
sentence, no matter how many animals were affected. We resolve that question using	9
a two-part test. First, we “analyze the statute at issue to determine whether the	10
Legislature has defined the unit of prosecution.” State v. Swick, 2012-NMSC-018,	11
¶ 33, 279 P.3d 747. “The plain language of the statute is the primary indicator of	12
legislative intent.” Ramirez, 2018-NMSC-003, ¶ 47 (internal quotation marks and	13
citation omitted). In addition to the statute’s wording, we may examine the statute’s	14
purpose. Swick, 2012-NMSC-018, ¶ 33. “If the unit of prosecution is clear from the	15
language of the statute, the inquiry is complete.” Id. If not, “we move to the second	16
step, in which we determine whether [the] defendant’s acts are separated by	17
sufficient indicia of distinctness to justify multiple punishments under the same	18
statute.” Ramirez, 2018-NMSC-003, ¶ 47 (internal quotation marks and citation	19
omitted).	20

7
{11} 	In relevant part, the animal cruelty statute provides that “[c]ruelty to animals	1
consists of a person: (1) negligently mistreating, injuring, killing without lawful	2
justification or tormenting an animal; or (2) abandoning or failing to provide	3
necessary sustenance to an animal under that person’s custody or control.” Section	4
30-18-1(B). Notably, the statute lacks an express statement identifying the offense’s	5
unit of prosecution. See, e.g., State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 41, 136	6
N.M. 309, 98 P.3d 699 (identifying the statutory language “[e]ach separate incident	7
of embezzlement or conversion constitutes a separate and distinct offense” as one	8
example of a clear expression of the unit of prosecution).	9
{12} 	Nevertheless, the statute implies that the Legislature intended punishment	10
under it to correspond to the number of animals a person subjects to cruelty. The	11
statute uses the singular term “an animal” in describing the crime, rather than the	12
plural, “one or more animals.” This choice indicates that the unit of prosecution	13
corresponds to each animal subjected to cruelty, not to a single course of conduct	14
that harms multiple animals. See Ramirez, 2018-NMSC-003, ¶ 53 (“It is well	15
established . . . that where a statute prohibits the doing of some act to a victim	16
specified by a singular noun, ‘a person’ for example, then ‘the person’ is the unit of	17
prosecution.”). The choice further expresses a desire to not assign only one unit of	18
prosecution to a single course of conduct that results in harm to multiple animals.	19
See id. As written, the statute is complete and makes sense, and so we will not read	20

8
into it words not there. See State v. Lopez, 2011-NMCA-071, ¶ 10, 150 N.M. 34, 256	1
P.3d 977. In short, the statute’s plain language suggests that the Legislature intended	2
the offense’s unit of prosecution to correspond to the number of animals subjected	3
to cruelty, not to an episode of conduct resulting in cruelty to any number of animals.	4
{13} 	A 	somewhat 	broader 	look 	at 	the 	animal 	cruelty 	statute 	supports 	this	5
interpretation by revealing that a person’s conduct, though relevant, is not the focus	6
of the offense. See generally Ramirez, 2018-NMSC-003, ¶¶ 51-52 (analyzing the	7
unit 	of 	prosecution 	for 	child 	endangerment 	and 	considering 	that 	the 	child	8
endangerment statute’s focus is the prohibition, not the consequences, of conduct).	9
That is, the target of the animal cruelty statute is not risky or potentially deleterious	10
conduct, the consequences of which carry secondary, if any, import. If it were, the	11
number of animals affected by that conduct would be less relevant. The statute’s	12
proscribed conduct is instead bound to its consequence: every time the offense is	13
committed, the result sought to be prevented—the mistreatment, injury, killing,	14
tormenting, abandonment, or undernourishment of an animal—ensues. It follows	15
that the focus of the offense is its result: harm to animals.	16
{14} 	Therefore, if two animals have been subjected to harm, two results sought to	17
be prevented have occurred, and two units of prosecution therefore arise. This is the	18
case regardless of whether that harm was caused by a person’s single course of	19
conduct.	20

9
{15} 	Because we conclude that the statutory language makes the unit of prosecution	1
clear, we need not continue to the second step in the unit-of-prosecution test in order	2
to conclude that Defendant’s conduct toward each dog was a discrete act constituting	3
one offense, and thus that Defendant’s multiple punishments do not violate her	4
double jeopardy rights.	5
II. 	The Evidence Was Sufficient to Support Defendant’s Convictions for	6
Animal Cruelty	7
{16} 	Defendant next argues that the evidence presented at trial was insufficient to	8
support her convictions for animal cruelty. When reviewing such a claim, we	9
consider “whether substantial evidence of either a direct or circumstantial nature	10
exists to support a verdict of guilt beyond a reasonable doubt with respect to every	11
element essential to a conviction.” State v. Baroz, 2017-NMSC-030, ¶ 9, 404 P.3d	12
769 (internal quotation marks and citation omitted). “Substantial evidence is relevant	13
evidence that a reasonable mind might accept as adequate to support a conclusion.”	14
Id. (internal quotation marks and citation omitted). On review, we “resolve all	15
disputed facts in favor of the [s]tate, indulge all reasonable inferences in support of	16
the verdict, and disregard all evidence and inferences to the contrary.” Id. (internal	17
quotation marks and citation omitted). We further note that the jury instructions used	18
at trial become the law of the case against which the sufficiency of the evidence is	19
measured. State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517. Here, the jury	20
instructions directed the jury to find Defendant guilty of each count of animal cruelty	21

10
if the jury found, in relevant part, that she (1) “negligently mistreated, injured, killed	1
without justification, or tormented [the particular dog associated with the count]”;	2
or (2) “abandoned or failed to provide necessary sustenance to [that dog.]”	3
{17} 	Defendant 	bases 	her 	claim 	of 	insufficiency 	on 	the 	lack 	of 	causation.	4
Specifically, she argues that “no evidence was presented as to when [Defendant]	5
received each dog” and that, consequently, it was “just as reasonable to conclude	6
that she had taken in some dogs on the day before the police raid as it [was] to	7
conclude that she had taken the dogs in weeks or months earlier[.]” Defendant then	8
points out that she could not reasonably have restored the dogs to health in a single	9
day. She also makes the point that there was no evidence as to the condition of each	10
dog when she received it, and so it was possible that the dogs’ conditions improved	11
while in her care.	12
{18} 	Defendant’s own testimony, however, undermines her argument. Defendant	13
testified to having had ten of the dogs when she moved to the property in early to	14
mid-February and to having acquired thirty-two more dogs over the following two	15
to four weeks. In other words, according to Defendant, she had forty-two dogs for at	16
least three weeks before law enforcement removed the dogs on April 1.2
17
2Defendant also testified that one of the dogs gave birth to seven puppies one
week before April 1.

11
{19} 	Further, Defendant’s argument is premised on a mistaken presumption that to	1
find cruelty to a given dog, the jury had to find that she caused its specific injury or	2
affliction or caused its condition to worsen while the dog was in her care. The jury	3
instructions—defining the law of the case—did not say this. Instead they referred,	4
in 	relevant 	part, 	to 	negligent 	mistreatment 	and 	failure 	to 	provide 	necessary	5
sustenance.	6
{20} 	Under the standard established by the jury instructions, it was reasonable for	7
the jury to find guilt. Dr. Norris testified that dogs A-7, A-8, B-3, B-6, B-7, B-9, B-	8
10, B-13, B-25, B-34, B-37, and B-40 were significantly underweight or emaciated	9
on April 1. Dr. Norris also testified that about thirty to forty bowls of dog food would	10
be an appropriate amount to adequately feed the number of dogs Defendant kept;	11
meanwhile, one of the officers testified that he did not see any food in bowls	12
available to the dogs in the house. Based on the testimony by Dr. Norris about the	13
dogs’ emaciated condition and the amount of food necessary and on Defendant’s	14
testimony about the number of dogs and the length of time they were in her care, the	15
jury could have reasonably concluded that Defendant failed to give the twelve dogs	16
identified above the sustenance they needed, thereby satisfying the second prong of	17
the jury instructions.	18
{21} 	It furthermore would have been reasonable for the jury to conclude that	19
Defendant also mistreated these and the other dogs identified in the indictment. First,	20

12
Dr. Norris testified that it did not appear from her examination that the dogs were	1
provided adequate care. The jury could have reasonably equated this inadequacy	2
with mistreatment.	3
{22} 	Second, there was evidence that the dogs were exposed to health hazards. Dr.	4
Norris testified that dogs living in a feces-covered environment could develop skin	5
and respiratory problems, and also that feces and urine contain ammonia, which can	6
burn mucous membranes. Considering the testimony of other witnesses about the	7
presence of feces and urine in the house, the jury could have reasonably inferred that	8
the dogs were living in an unhealthy environment, a circumstance contributing to	9
their mistreatment.	10
{23} 	Third, 	there 	was 	evidence 	that 	the 	dogs’ 	circumstances 	fostered 	their	11
aggressive behaviors. Dr. Norris described the propensity of dogs, as pack animals,	12
to become defensive and aggressive toward other dogs when their access to	13
resources, including space, food, companionship, and water, is limited. Witnesses at	14
trial testified to seeing little or no food or water available to the dogs. The jury also	15
heard that Defendant kept the nearly fifty dogs together on her property. These	16
observations could lead to a reasonable inference that the dogs’ circumstances,	17
which Defendant created, caused or aggravated their aggression toward each other.	18
This inference is even stronger given Dr. Norris’s testimony both that some of the	19
dogs were not sterilized and that unsterilized female and male dogs should stay	20

13
separated, because keeping them together would increase aggression among the	1
males competing for the females.	2
{24} 	Collectively, this evidence about the conditions the dogs were living in—	3
conditions both consisting of inadequate access to food and water and also carrying	4
the potential for health issues or injury by other, more aggressive dogs—could lead	5
to the reasonable conclusion, beyond a reasonable doubt, that Defendant was unable	6
to adequately meet the dogs’ basic needs, and that such inadequacy amounted to	7
mistreatment.	8
{25} 	Overall, the State presented substantial evidence at trial to support the	9
conclusion that Defendant mistreated the dogs, failed to give them necessary	10
sustenance, 	or 	both. 	There 	was 	therefore 	sufficient 	evidence 	to 	support	11
each of Defendant’s animal cruelty convictions.	12
III. 	The District Court’s Denial of an Instruction Defining Negligence as	13
Criminal Negligence, if Error, Was Harmless	14
{26} 	At the jury instruction stage of trial, the parties agreed on using instructions	15
providing that, for each count of animal cruelty, Defendant was guilty if the jury	16
found that she (1) “negligently mistreated, injured, killed without justification, or	17
tormented [the particular dog associated with the count];” or that she (2) “abandoned	18
or failed to provide necessary sustenance to [that dog.]” Of these two agreed-upon	19
theories of liability presented to the jury, the first entailed a finding that Defendant	20

14
acted with negligence, while the latter entailed a finding that Defendant deprived the	1
particular dog of necessary food or water.	2
{27} 	Regarding the first, defense counsel asked the district court to supplement the	3
instruction with one patterned on UJI 14-133 NMRA, which defines negligence as	4
“act[ing] with willful disregard of the rights or safety of others and in a manner	5
which endanger[s] any person or property[.]” Defendant’s proposed instruction	6
defines a criminal standard of negligence. 3 See State v. Yarborough, 1996-NMSC-	7
068, ¶ 20, 122 N.M. 596, 930 P.2d 131. The State objected to that instruction, after	8
which the parties debated the matter, and the court ultimately declined to give the	9
instruction. Defendant now argues that the ruling was error requiring reversal.	10
{28} 	We review this issue, the denial of a requested jury instruction, de novo. See	11
State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. On review,	12
we first consider whether the issue was preserved by a request for the instruction.	13
See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. If it was,	14
as here, then we review for reversible error. See id. Under this standard, we “seek to	15
determine whether a reasonable juror would have been confused or misdirected by	16
the jury instruction [given].” Id. (internal quotation marks and citation omitted).	17
“[J]uror confusion or misdirection may stem . . . from instructions which, through	18
3 Defendant’s proposed instruction read, “For you to find that [D]efendant
acted negligently, you must find that [D]efendant acted with willful disregard of the
rights or safety of the dogs and in a manner which endangered the dogs.”

15
omission or misstatement, fail to provide the juror with an accurate rendition of the	1
relevant law.” 	Id. 	At issue here is whether the omitted instruction defining	2
“negligence” misdirected the jury by allowing it to find guilt under a standard lower	3
than that required for an animal cruelty conviction, which we will assume without	4
deciding is criminal negligence.	5
{29} 	Our case law does not squarely address whether the definition of criminal	6
negligence, as expressed in UJI 14-133, must be given to the jury every time cruelty	7
to animals, a misdemeanor, is charged and negligence is alleged as part of the charge.	8
Santillanes v. State, 1993-NMSC-012, ¶ 13, 115 N.M. 215, 849 P.2d 358, and	9
Yarborough 	make clear that when the Legislature has used but not defined	10
“negligently” in a statute creating a felony, “only criminal negligence may be a	11
predicate for [the] felony unless another intention is clearly expressed by the	12
[L]egislature.” Yarborough, 1996-NMSC-068, ¶ 18. This reasoning is based on the	13
“intuitive notion that a higher standard than [civil] negligence should be applied	14
when the crime is punishable as a felony.” Santillanes, 1993-NMSC-012, ¶ 19. In	15
line with that rationale, our Court has recognized that when a negligence-based	16
crime is punished as a petty misdemeanor, a showing that meets the lower standard,	17
civil negligence, suffices. State v. Yarborough, 1995-NMCA-116, ¶ 19, 120 N.M.	18
669, 905 P.2d 209, aff’d, 1996-NMSC-068; accord Santillanes, 1993-NMSC-012,	19
¶ 27. Notably, neither of New Mexico’s appellate courts has established whether,	20

16
generally speaking, negligence punished criminally at the misdemeanor level—i.e.,	1
the level between that of a petty misdemeanor and a felony—requires a showing of	2
criminal or civil negligence. 4
3
{30} 	We need not answer this question, however, to resolve this issue. This is	4
because “[w]hen there can be no dispute that the essential element was established,	5
. . . failure to instruct on that element does not require reversal of the conviction.”	6
Santillanes, 1993-NMSC-012, ¶ 32. More precisely, “[a] definitional instruction”	7
such as that for criminal negligence “is not necessary if, as [a] matter of law, no	8
rational juror could find that a defendant acted with less than criminal negligence.”	9
State v. Reed, 2005-NMSC-031, ¶ 57, 138 N.M. 365, 120 P.3d 447. Here—on those	10
counts, if any, for which Defendant’s guilt was premised on the first, “negligent”	11
prong of the instruction—no rational juror could have found that she acted with less	12
than criminal negligence.	13
{31} 	Turning to the central issue of whether omitting the instruction defining	14
“negligence” allowed the jury to find guilt under a standard lower than criminal	15
4At least two cases indirectly touch on this point in the animal cruelty context.
Both appear to assume without deciding that the appropriate standard is criminal
negligence. See State v. Collier, 2013-NMSC-015, ¶ 25, 301 P.3d 370 (remarking,
for purposes of issue preclusion and double jeopardy, that the state would have to
prove criminal negligence for an animal cruelty charge); State v. Duttle, 2017-
NMCA-001, ¶ 18, 387 P.3d 885 (noting, in weighing the sufficiency of the evidence
for animal cruelty convictions, the absence of a “criminal negligence” definition in
the jury instructions).

17
negligence, we conclude for the following reasons that it did not. To begin, this Court	1
has recognized a relationship, relevant here, between criminal negligence and	2
general criminal intent in the animal cruelty context. State v. Stewart held that a	3
defendant’s intentional, purposeful, or deliberate act of harming an animal “is	4
sufficient to establish that the defendant acted with ‘willful disregard’ for that	5
animal’s safety”—that is, sufficient to establish criminal negligence. 2005-NMCA-	6
126, ¶ 32, 138 N.M. 500, 122 P.3d 1269. The defendant in Stewart was convicted of	7
animal cruelty for having kicked a puppy. Id. ¶ 1. He conceded that he acted	8
intentionally when he committed that act. Id. ¶ 31. His argument on appeal was that	9
“when the evidence shows intentional conduct, a conviction for criminally negligent	10
conduct cannot stand.” 	Id. 	The court rejected that argument and upheld the	11
conviction, reasoning that the defendant’s conduct both sufficed to establish criminal	12
negligence and also established more culpability than required for negligent animal	13
cruelty. Id. ¶ 33.	14
{32} 	Although the defendant in Stewart, unlike Defendant here, conceded that “it	15
[was] his conscious object to injure an animal,” id.—in other words, that he intended	16
harm to the puppy—the Stewart principle extends to this case. The jury here found	17
that Defendant “acted intentionally when [s]he committed the crime”—that is, acted	18
with general criminal intent. In both cases, then, the defendants intended to commit	19
an act. The acts in question constituted harm to one or more animals. Thus, in both	20

18
Stewart and here, there are intentional acts constituting proscribed conduct. This is	1
in contrast to those cases in which the defendant’s intentional, negligent act creates	2
a risk of harm, and actual harm results; only then—in that type of case—is the	3
presence of the risk or fault associated with criminal negligence called into question.5
4
See, e.g., State v. Magby, 1998-NMSC-042, ¶¶ 1-2, 15, 126 N.M. 361, 969 P.2d 965	5
(analyzing the level of negligence necessary to support a conviction of child abuse	6
arising from an accident in which a child fell from a horse, allegedly because of the	7
defendant’s actions), overruled on other grounds by State v. Mascareñas, 2000-	8
NMSC-017, ¶ 27, 129 N.M. 230, 4 P.3d 1221; cf. Santillanes, 1993-NMSC-012,	9
¶ 38 (“The purpose of the criminal negligence standard is to deter behavior that is	10
culpable or, in other words, conduct that entails greater risk or fault than mere	11
inadvertence or simple negligence.” (emphasis added)).	12
{33} 	Here, as in Stewart, the question of criminal negligence does not come into	13
play, given the jury’s general intent finding and the evidence presented at trial. The	14
jury found that Defendant acted intentionally while engaging in conduct that did	15
more than simply create the risk of, and end in, harm; the conduct itself constituted	16
5This was not a situation in which, for example, a careless driver accidentally
kills an animal that darts in front of the driver’s car. In such a scenario, a jury would
properly consider whether the defendant’s conduct leading to the accident deviated
(grossly, in the case of criminal negligence) from the standard of care that a
reasonable person would exercise in the defendant’s situation—or, said differently,
whether the defendant’s careless conduct was negligent.

19
animal 	cruelty. 	In 	reaching 	its 	conclusion 	in 	this 	regard, 	the 	jury 	therefore	1
necessarily found that Defendant acted with a willful disregard of the dogs’ safety	2
and in a manner that endangered them—that she acted at a standard meeting or	3
exceeding criminal negligence. See Stewart, 2005-NMCA-126, ¶ 32. To briefly	4
reiterate aspects of the volume of evidence supporting the jury’s determination: a	5
team of law enforcement and animal control officers encountered dozens of dogs in	6
a feces-laden environment and lacking sufficient food and water. Some were caged,	7
others appeared wounded or disabled, and aggressive behavior among the many dogs	8
was persistent.	9
{34} 	Accordingly, 	the 	district 	court’s 	denial of 	Defendant’s request 	for the	10
instruction defining negligence—if error—was harmless error not warranting the	11
reversal of Defendant’s animal cruelty convictions. To the extent that the convictions	12
were based on the first, negligence-based prong of the jury instruction, no rational	13
juror could have found that Defendant acted with less than criminal negligence.	14
IV. 	Defendant’s “Void-For-Vagueness” Claim Is Unreviewable	15
{35} 	Defendant argues next that the unlicensed practice of veterinary medicine	16
statute, Section 61-14-18, is “unconstitutionally vague” and thus a violation of due	17
process. 	Although 	Defendant 	characterizes 	the 	issue 	in 	this 	manner, 	the	18
underpinnings of her argument are at odds with her assertion and otherwise do not	19

20
undermine her conviction. This is evident in light of the vagueness doctrine, the	1
statute’s text, and the actual charge against Defendant.	2
{36} 	The vagueness doctrine, insofar as it relates to what Defendant appears to be	3
arguing, “is based on the principle of fair notice in that no one may be held criminally	4
responsible and subject to criminal sanctions for conduct without fair warning as to	5
the nature of the proscribed activity.” Duttle, 2017-NMCA-001, ¶ 12 (internal	6
quotation marks and citation omitted).	7
{37} 	The veterinary medicine statute provides that it is a misdemeanor for a person	8
to practice veterinary medicine without a licence entitling them to engage in that	9
practice. Section 61-14-18. The practice is defined in relevant part as	10
the diagnosis, treatment, correction, change, relief or prevention of	11
animal disease, deformity, defect, injury or other physical or mental	12
condition, including the prescription or administration of any drug,	13
medicine, 	biologic, 	apparatus, 	application, 	anesthetic 	or 	other	14
therapeutic or diagnostic substance or technique and the use of any	15
procedure for artificial insemination, testing for pregnancy, diagnosing	16
and treating sterility or infertility or rendering advice with regard to any	17
of these[.]	18
NMSA 1978, § 61-14-2(B)(1) (1993, amended 2017).	19
{38} 	The thrust of Defendant’s argument is not that the statute’s vagueness	20
prevented her from knowing that her conduct violated it, which would more closely	21
resemble a vagueness claim. See Santillanes, 1993-NMSC-012, ¶ 22 (concluding	22
that the vagueness doctrine is implicated when “persons of common intelligence	23

21
must guess at the meaning of an element in a criminal statute and thereby differ as	1
to its application”). She instead argues that she (and, by implication, other dog	2
owners) should be exempted from the statute because otherwise, “no pet owner	3
would be permitted to give their pets medication or clean a fresh wound,”	4
“diagnose[] their dog as having diarrhea,” or give “in-home care [to] a personal pet,”	5
including by administering flea medication.	6
{39} 	These claims are irrelevant here. In essence, Defendant is putting forth a broad	7
interpretation of the statute, treating it as valid, and concluding that absurd results	8
would follow from that interpretation. But this case does not call for resolution of	9
the issue Defendant raises. Underlying Defendant’s charge was not, to use her	10
example, the simple cleaning of a dog’s wound. Rather, the State’s theory was that	11
she was spaying and neutering dogs and giving them rabies shots without a valid	12
license. Defendant does not challenge the statute as unconstitutional when applied	13
to those facts.	14
{40} 	Instead of a vagueness challenge, Defendant presents a hypothetical issue, the	15
resolution of which would have no effect on her case. In accordance with our	16
practice, we will not review the issue. See State v. Ordunez, 2012-NMSC-024, ¶ 22,	17
283 P.3d 282.	18

22
V. 	Defendant’s Limitation-of-Testimony Challenge Is Unreviewable	1
{41} 	Defendant next contends that “[t]he [district c]ourt’s limitation of testimony,	2
both in [her] case-in-chief and on cross-examination of the State’s expert, was an	3
abuse of discretion warranting reversal.” Defendant argues that the court improperly	4
restricted her testimony about the dogs to only the kind made by a layperson, not an	5
expert, since Defendant had not been offered and accepted as an expert witness.	6
Defendant further contends that she was prevented from eliciting certain information	7
from the State’s expert witness during cross-examination.	8
{42} 	Defendant’s briefing is inadequate for us to properly review this issue. For	9
one thing, Defendant omits a statement on preservation, in violation of Rule 12-	10
318(A)(4) NMRA. Our ability to know whether this issue is reviewable—and if so,	11
to apply the correct standard of review—is thus impaired. See, e.g., Rule 12-321(A)	12
NMRA (“To preserve an issue for review, it must appear that a ruling or decision by	13
the [district] court was fairly invoked.”); Rule 12-321(B)(2) (dictating the scope of	14
review for unpreserved arguments). Even if these preliminary requirements had been	15
met, however, Defendant still fails to establish that the district court’s limiting of	16
testimony warrants reversal, as she asserts it does.	17
{43} 	Concerning Defendant’s first argument, regarding the limitation on her own	18
testimony, her only citation to authority in support of the substance of her claim is	19
Chambers v. Mississippi, 410 U.S. 284 (1972). She characterizes Chambers as	20

23
standing for the proposition that “state evidence rules . . . that prevent admission of	1
evidence must fall if they interfere with a criminal defendant’s right to present a	2
defense.”	3
{44} 	Even if we accept Defendant’s characterization, she has failed to establish	4
how the district court’s ruling impaired her defense. In its answer brief, the State	5
points out that Defendant was in fact allowed to testify on the matters she claims she	6
could not: the condition of one of the dogs when she got it and her care for the dogs,	7
generally. The State further argues that Defendant “fails to . . . otherwise substantiate	8
her claim with any analysis.” Defendant did not respond to clarify her assertions.	9
{45} 	Overall, Defendant gives us too little material showing that her defense was	10
impaired for Chambers to come to her aid. In the absence of any other legal authority	11
or argument establishing that the district court’s ruling amounted to error, we	12
recognize none. See, e.g., Rule 12-318(A)(4) (requiring citation to New Mexico	13
decisions); State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (assuming	14
that no authority supporting a proposition exists when the party asserting it cites	15
none).	16
{46} 	Concerning Defendant’s second complaint, regarding the limitation of her	17
cross-examination of State’s expert witness, Defendant contends that she “was	18
prohibited from asking [the expert, Dr. Norris,] about the dogs’ health records while	19
in the [animal shelter], in violation of [Defendant’s federal constitutional rights] to	20

24
due process, fair trial, and confrontation.” Defendant cites two points in the trial	1
record in reference to this claim. 6 Only one is relevant. 7 It documents a bench	2
conference in which the district court appeared to agree with the State that Dr. Norris	3
could not answer a question about the dogs’ animal-shelter weights because, as had	4
already been established, she lacked that information. Here, too, the State makes this	5
point in its answer brief, and Defendant fails to rebut it or cite any authority	6
supporting her claim of error.	7
{47} 	All considered, Defendant fails to adequately develop this argument and has	8
therefore failed to meet her burden to demonstrate error. See State v. Aragon, 1999-	9
NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211.	10
VI. 	Defendant’s Competency Claim Is Unreviewable	11
{48} 	Defendant next argues that the district court erred by finding Defendant	12
competent to stand trial because that finding was contrary to the conclusion of the	13
only expert witness to testify at Defendant’s competency hearing. Defendant	14
contends that, “[i]n light of the lack of contrary evidence [presented at the hearing]	15
6We rely on Defendant for citations to the record, since it is not our duty to
“search the record to find facts to support [a defendant’s] argument.” State v.
Dominguez, 2014-NMCA-064, ¶ 26, 327 P.3d 1092. We also consider Defendant’s
argument only insofar as the citations she provides direct us to the error she alleges.
See, e.g., Murken v. Solv-Ex Corp., 2005-NMCA-137, ¶ 14, 138 N.M. 653, 124 P.3d
1192. 7The other citation is to a point at trial when Defendant, not Dr. Norris, is
testifying.

25
to [the expert’s] opinion, it was an abuse of discretion to find [Defendant]	1
competent.” She continues, “given no evidence to the contrary, there was only one	2
correct outcome, and the [district c]ourt ignored it.”	3
{49} 	The record tells a different story. It reveals that the district court relied on	4
statements reported by the expert and that it then applied the expert’s findings to a	5
set of legal factors for determining competency. The court found that Defendant met	6
the factors and therefore was competent to stand trial under the law.	7
{50} 	On appeal, Defendant does not argue that the district court relied on legally	8
incorrect factors or misapplied the facts to the law in making its determination. Nor	9
does Defendant cite any authority for the proposition that a district court must, when	10
there is only one expert, adopt the ultimate conclusion of that expert. Defendant	11
instead makes the bare assertions quoted above and fails to cite to any authority that	12
gives her claim merit. In light of these deficiencies, we will not review this issue.	13
See Rule 12-318(A)(4) (requiring citation to authority in appellate briefs); State v.	14
Nozie, 2009-NMSC-018, ¶ 15, 146 N.M. 142, 207 P.3d 1119 (“[A]n appellate court	15
is not required to review issues raised in appellate briefs that are unsupported by	16
cited authority. When a criminal conviction is being challenged, counsel should	17
properly present the reviewing court with the issues, arguments, and proper	18
authority. Mere reference in a conclusory statement will not suffice and is in	19

26
violation of our rules of appellate procedure.” (alteration, internal quotation marks,	1
and citation omitted)).	2
VII. 	We Decline to Review Defendant’s Ineffective Assistance of Counsel	3
Claim	4
{51} 	Defendant’s last substantive issue concerns the assistance of her trial counsel.	5
Defendant argues that she was denied effective assistance “because [her trial	6
counsel] was not granted continuances to prepare and hire expert witnesses to	7
counter the State’s expert witness.” We agree with the State that Defendant fails to	8
make a prima facie showing that she was denied the effective assistance of counsel.	9
Despite recognizing that the standard for ineffective assistance is met when	10
“counsel’s performance [falls] below an objective standard of reasonableness,” see,	11
e.g., State v. Sloan, 2019-NMSC-019, ¶ 33, 453 P.3d 401, Defendant fails to point	12
to any deficiency in her counsel’s performance.	13
{52} 	Defendant instead focuses on the district court’s refusal to grant continuances.	14
Here, too, the record contradicts Defendant’s assertions: it shows that the court	15
granted the first six of Defendant’s eight requests for a continuance. More to the	16
point, however, Defendant fails to establish the relationship between the court’s	17
refusal to grant a seventh continuance and her trial counsel’s deficient performance,	18
and she also fails to cite to any authority lending merit to her claim. We therefore	19
decline to review this issue. See Nozie, 2009-NMSC-018, ¶ 15.	20

27
VIII. Defendant’s Trial Was Free of Cumulative Error	1
{53} 	Defendant 	lastly 	contends 	that 	the 	errors 	alleged 	on 	appeal 	constitute	2
cumulative error requiring a reversal of the judgment. Having identified no error at	3
trial, we recognize no cumulative error. See State v. Samora, 2013-NMSC-038, ¶ 28,	4
307 P.3d 328.	5
CONCLUSION	6
{54} 	We affirm.	7
{55} 	IT IS SO ORDERED.	8
_____________________________	9
KRISTINA BOGARDUS, Judge	10
I CONCUR:	11
______________________________	12
J. MILES HANISEE, Chief Judge	13

28
IVES, Judge (dissenting in part and concurring in part).	1
{56} 	Defendant was exposed to the possibility of spending over two decades in	2
prison for twenty-two animal cruelty convictions that were based on a legally	3
erroneous instruction on an essential element at the heart of Defendant’s trial. The	4
improper instruction allowed the jury to find Defendant guilty if it concluded that	5
her treatment of the dogs was unreasonable or careless. But the law requires the State	6
to meet a significantly higher standard: criminal negligence, which entails willful	7
disregard for the safety of the dogs and endangerment. By refusing to give	8
Defendant’s requested criminal negligence instruction, the district court allowed the	9
State to obtain convictions based on a legally invalid ordinary negligence theory and	10
effectively prevented Defendant from presenting the legally valid defense that she	11
was not aware of any significant risk of harm to the dogs. In my view, this prejudicial	12
error requires reversal of Defendant’s animal cruelty convictions and a new trial on	13
those charges. Because the majority concludes otherwise, I respectfully dissent.8
14
I. 	The Animal Cruelty Statute Requires the State to Prove 	Criminal	15
Negligence	16
{57} 	Whether New Mexico’s animal cruelty statute requires the State to prove	17
ordinary negligence or criminal negligence is a question of statutory construction	18
8I concur in the majority’s affirmance of Defendant’s conviction for practicing
veterinary medicine without a license.

29
that we review de novo. See State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182,	1
218 P.3d 868. I therefore “begin with the plain language of the statute, which is the	2
primary indicator of legislative intent.” State v. Suazo, 2017-NMSC-011, ¶ 16, 390	3
P.3d 674 (alteration, internal quotation marks, and citation omitted). Section 30-18-	4
1(B) provides, in pertinent part, that “[c]ruelty to animals consists of a person . . .	5
negligently mistreating, injuring, killing without lawful justification or tormenting	6
an animal[.]” (Emphasis added.) A person who commits this crime “is guilty of a	7
misdemeanor,” but “[u]pon a fourth or subsequent conviction,” the person “is guilty	8
of a fourth degree felony.” Section 30-18-1(D).	9
{58} 	That animal cruelty may be punished as a felony is critical because it is “well-	10
established in New Mexico[] that only criminal negligence may be a predicate for a	11
felony 	unless 	another 	intention 	is 	clearly 	expressed 	by 	the 	[L]egislature.”	12
Yarborough, 1996-NMSC-068, ¶ 18; see also Santillanes, 1993-NMSC-012, ¶ 30	13
(“When a crime is punishable as a felony, civil negligence ordinarily is an	14
inappropriate predicate by which to define such criminal conduct.”). Therefore, in	15
interpreting the statutory mens rea element of “negligen[ce],” we must presume that	16
the Legislature was aware of New Mexico precedent that existed in 1999, when the	17
Legislature enacted the animal cruelty statute. See V.P. Clarence Co. v. Colgate,	18
1993-NMSC-022, ¶ 10, 115 N.M. 471, 853 P.2d 722 (“[T]he [L]egislature is	19
presumed to act with knowledge of relevant case law[.]”). At that time, our Supreme	20

30
Court had already recognized, in Santillanes and Yarborough, that felony offenses	1
require proof of criminal negligence absent a clear expression of legislative	2
expression to the contrary. Presumably aware of these precedents, the Legislature	3
did not elect to clearly express its intention to allow a felony animal cruelty	4
conviction based on a finding of ordinary negligence. I therefore conclude that the	5
requisite intent for felony animal cruelty is criminal negligence.	6
{59} 	And because the Legislature chose to define the essential elements of felony	7
and misdemeanor animal cruelty identically, the mens rea for the misdemeanor must	8
also be criminal negligence. The plain language and structure of the statute compel	9
that conclusion. See State v. Almanzar, 2014-NMSC-001, ¶ 15, 316 P.3d 183	10
(recognizing that “[i]f the relevant statutory language is unclear, ambiguous, or	11
reasonably subject to multiple interpretations,” a court should proceed to consider	12
“the history, background, and overall structure of the statute, as well as its function	13
within a comprehensive legislative scheme” (internal quotation marks and citations	14
omitted)). The Legislature chose to use exactly the same words to define the essential	15
elements of the felony and the misdemeanor. Both the felony and the misdemeanor	16
are defined in the same subsection of the statute, and the Legislature used the word	17
“negligently” to describe the intent element. I do not believe we should assign	18
different definitions to the same word appearing in the same subsection of the same	19
statute. See State v. Cleve, 1999-NMSC-017, ¶ 12, 127 N.M. 240, 980 P.2d 23	20

31
(concluding that the Legislature intended for the phrase “any animal” to have the	1
same meaning “within a single subsection” of the animal cruelty statute). Assigning	2
two different meanings to the word “negligently” under these circumstances would	3
create a contradiction. See Nick R., 2009-NMSC-050, ¶ 11 (recognizing that we must	4
avoid construing statutes in a manner that would lead to a contradiction). Had the	5
Legislature intended to require criminal negligence for the felony and ordinary	6
negligence for the misdemeanor, it could easily have said so. But the Legislature	7
chose instead to describe the mental states for both crimes with a single word,	8
“negligently.” Under these circumstances, to hold that criminal negligence is	9
required for the felony but that ordinary negligence is required for the misdemeanor	10
would require us to rewrite the statute. I decline to do so, adhering instead to the	11
words and structure the Legislature chose. See Martinez v. Sedillo, 2005-NMCA-	12
029, ¶ 7, 137 N.M. 103, 107 P.3d 543 (“We will not rewrite a statute.”). I would	13
therefore hold that a defendant may not be convicted of misdemeanor animal cruelty	14
absent proof beyond a reasonable doubt that the defendant acted with criminal	15
negligence.	16
II. 	The District Court Erred by Refusing to Give a Criminal Negligence	17
Instruction	18
{60} 	I agree with Defendant that the district court erred by refusing to give the jury	19
the following instruction: “For you to find that [D]efendant acted negligently, you	20
must find that [D]efendant acted with willful disregard of the rights or safety of the	21

32
dogs and in a manner which endangered the dogs.” 9 Defendant’s requested	1
instruction closely tracks New Mexico’s uniform jury instruction defining “criminal	2
negligence,” UJI 14-133.10 By refusing to instruct the jury that the State bore the	3
burden of proving that Defendant was criminally negligent, as that mental state is	4
defined by UJI 14-133 and our precedent, the district court left the jury with the	5
incorrect impression that it could convict Defendant for being merely “negligent,”	6
as that word is defined in lay dictionaries. See Magby, 1998-NMSC-042, ¶ 13	7
(recognizing that “[a]bsent express definition of a term in an instruction, words in	8
jury 	instructions 	should 	usually 	be 	understood 	according 	to 	their 	ordinary	9
meaning[,]” which may be found in “[l]ay dictionaries”). In ordinary usage (and	10
under our civil law), “negligent” means “failure to exercise the care that a reasonably	11
9 Defendant’s requested instruction pertained only to the portion of the
essential elements instruction that was based on the State’s negligence theory. That
instruction also included the State’s alternative theory that Defendant failed to
provide necessary sustenance to the dogs. However, the alternative theory does not
give us a basis to affirm because the jury returned a general verdict, not a special
verdict, which makes it impossible for us to determine whether the jury relied on
negligence, failure to provide necessary sustenance, or both. See Campos v. Bravo,
2007-NMSC-021, ¶ 19, 141 N.M. 801, 161 P.3d 846 (recognizing that when a jury
is 	instructed 	on 	alternative 	theories—one 	legally 	adequate 	and 	the 	other
inadequate—and returns a general verdict, reversal is required because the appellate
court cannot determine which theory the jury relied on).
10Defendant properly modified the uniform instruction to clarify that the case
involved dogs. UJI 14-133 defines criminal negligence as “willful disregard of the
rights or safety of others and in a manner which endangered any person or
property[,]” but Use Note 4 allows modification “[i]f the statutory offense identifies
some injury other than to a person or the property of others[.]”

33
prudent person would exercise in like circumstances.” 	Negligence, 	Merriam-	1
Webster, 	https://www.merriam-webster.com/dictionary/negligence 	(last 	visited	2
Mar. 9, 2020).	3
{61} 	But New Mexico law sets a significantly higher standard for criminal	4
negligence. Our Supreme Court has equated criminal negligence and recklessness.	5
See Mascareñas, 2000-NMSC-017, ¶ 9 (“Criminal negligence has been defined as	6
including conduct which is reckless, wanton, or willful.” (internal quotation marks	7
and citation omitted)). “Typical definitions of recklessness require an actor to	8
consciously disregard a substantial and unjustifiable risk of such a nature and degree	9
that its disregard involves a gross deviation from the standard of conduct that a law-	10
abiding person would observe in the actor’s situation.” State v. Consaul, 2014-	11
NMSC-030, ¶ 37, 332 P.3d 850 (emphasis added) (citing definition of “recklessly”	12
in 	Model 	Penal 	Code 	§ 	2.02(2)(c) 	(Official 	Draft 	1962)). 11 When 	criminal	13
negligence is an essential element, our Supreme Court has mandated the use of UJI	14
11 Consaul resolved confusion about whether criminal negligence entails
subjective knowledge. In State v. Webb, which preceded Consaul, this Court recited
an objective standard for child abuse, explaining that “a defendant need not be
subjectively aware of a risk, but the risk must be one of which he should be aware.”
2013-NMCA-027, ¶ 22, 296 P.3d 1247 (internal quotation marks and citation
omitted); 	see also State v. Muraida, 2014-NMCA-060, ¶ 10, 326 P.3d 1113
(applying this principle from Webb in the elder abuse context). This statement in
Webb was based on State v. Schoonmaker, 2008-NMSC-010, ¶ 44, 143 N.M. 373,
176 P.3d 1105, which our Supreme Court overruled in Consaul. Accordingly, I read
Consaul as implicitly overruling Webb and Muraida on this point.

34
14-133, which requires the state to prove that “the defendant acted with [(1)] willful	1
disregard of the rights or safety of others and [(2)] in a manner which endangered	2
any person or property.” Under UJI 14-133, the state must prove that the defendant	3
was “aware of the risk caused by his or her conduct and continued to act.” State v.	4
Henley, 2010-NMSC-039, ¶ 16, 148 N.M. 359, 237 P.3d 103. In other words, a	5
defendant must “possess subjective knowledge ‘of the danger or risk to others posed	6
by his or her actions.’ ” State v. Skippings, 2011-NMSC-021, ¶ 18, 150 N.M. 216,	7
258 P.3d 1008 (emphasis added) (quoting Henley, 2010-NMSC-039, ¶ 17).	8
{62} 	Because of the significant difference between the ordinary definition of	9
negligence 	and 	New 	Mexico’s 	legal 	definition 	of 	criminal 	negligence, 	the	10
instructions the jury received in Defendant’s case would have confused and misled	11
a reasonable juror. See State v. Luna, 2018-NMCA-025, ¶ 22, ___ P.3d ___	12
(“[F]ailure to give a definitional instruction when the term being defined has a legal	13
meaning different from the commonly understood lay interpretation of the term may	14
result in jury confusion that could place the verdict in doubt.” (alteration, internal	15
quotation 	marks, 	and 	citation 	omitted)). 	Without 	the 	benefit 	of 	Defendant’s	16
requested instruction defining criminal negligence, the jury was left with the	17
mistaken understanding that it could convict Defendant of animal cruelty if the State	18
proved that she failed to exercise the care expected of a reasonably prudent person	19
in like circumstances. But a person can behave unreasonably without disregarding—	20

35
or even possessing a subjective awareness of —a substantial and unjustifiable risk	1
of harm. The erroneous instruction decreased the State’s burden, allowing it to obtain	2
convictions without proving that Defendant had the requisite mens rea. Viewing the	3
evidence and arguments through the prism of ordinary negligence, rather than	4
criminal negligence, the jury had a highly distorted view of its task. Because the	5
instructions “direct[ed] the jury to find guilt based on a misstatement of the law, a	6
finding of juror misdirection is unavoidable.” State v. Dowling, 2011-NMSC-016,	7
¶ 17, 150 N.M. 110, 257 P.3d 930.	8
III. 	Reversal Is Required	9
{63} 	The prejudice caused by this error requires reversal under the “less onerous	10
level of scrutiny” we apply in reviewing jury instructions for reversible error. State	11
v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176. The erroneous	12
instruction 	rendered 	key 	components 	of 	Defendant’s 	testimony 	irrelevant.	13
Defendant explained to the jury that she believed she was providing adequate food,	14
water, exercise, and medication for the dogs and that her techniques for caring for	15
the dogs were effective. Under the criminal negligence instruction that the law	16
required, Defendant’s testimony about her subjective beliefs would have been not	17
only relevant, but potentially exculpatory. A properly instructed juror who credited	18
Defendant’s testimony that she believed the dogs were reasonably safe and well	19
looked-after in her care could have concluded that she did not willfully disregard	20

36
their safety. Cf. Mascareñas, 2000-NMSC-017, ¶ 15 (“If the jury believed . . . [that	1
the defendant] did not know that shaking [the infant victim] could cause the injuries	2
associated with SBS and that he shook the [victim] only ‘hard once,’ it is possible	3
that the jury could have, with an instruction properly defining criminal negligence,	4
attributed his conduct to mere carelessness and not reckless disregard of [the	5
victim’s] safety and health.”). In contrast, Defendant’s subjective beliefs were	6
wholly irrelevant under the faulty instructions, which asked the jury only whether	7
Defendant behaved as a reasonable person would have.	8
{64} 	The erroneous instructions also skewed the jury’s evaluation of the extent to	9
which Defendant had mistreated or injured the dogs, a question inextricably linked	10
with 	the 	issue 	of 	intent, 	see 	Nozie, 	2009-NMSC-018, 	¶ 	32 	(“[B]ecause 	an	11
individual’s intent is seldom subject to proof by direct evidence, intent may be	12
proved by circumstantial evidence.” (alteration, internal quotation marks, and	13
citation omitted)). The parties offered conflicting accounts of the conditions the dogs	14
were subjected to while in Defendant’s care, and the testimony of the State’s	15
witnesses painted a significantly grimmer picture of the dogs’ physical condition and	16
living environment than did Defendant’s testimony about how she cared for, fed,	17
cleaned up after, and exercised the dogs. The jury instructions should have required	18
the jury to at least consider these conflicts in determining whether Defendant’s	19
actions rose to the level of criminal negligence. Defendant’s account may well have	20

37
persuaded the jury that she did not act with criminal negligence, but it was far less	1
likely that the jury would see her testimony as exculpatory when viewing it through	2
a civil negligence prism.	3
{65} 	And the State’s arguments ensured that the jury viewed the entire case through	4
that prism. The State successfully opposed Defendant’s request for a criminal	5
negligence instruction, arguing that the crime of cruelty to animals by negligent	6
mistreatment requires only a showing of civil negligence. After persuading the	7
district court to adopt that position, the State (understandably) made full use of its	8
victory 	by 	repeatedly 	characterizing 	Defendant’s 	conduct 	as 	“negligent	9
mistreatment” during closing argument. And the State made clear that it was	10
referring to negligence in the ordinary sense, arguing that “no reasonable person”	11
would say that the environment Defendant provided was adequate for the dogs. The	12
State’s argument matched the erroneous instruction the jury received, and the	13
absence of an instruction explaining the concept of criminal negligence made it	14
impossible for defense counsel to rebut that argument. The defense had no basis in	15
the instructions to argue that the State’s theory was legally flawed. Cf. State v.	16
Gonzalez, 2005-NMCA-031, ¶ 25, 137 N.M. 107, 107 P.3d 547 (“[I]nasmuch as the	17
jury was not instructed on the element of knowledge, we would not expect [the	18
d]efendant’s argument to focus on that element.”).	19

38
{66} 	In concluding that the instructional error was harmless, the majority relies on	1
the jury’s finding that Defendant acted “intentionally” within the meaning of our	2
uniform general intent instruction, UJI 14-141 NMRA. In my view, that reliance is	3
misplaced. As an initial matter, we have no way of knowing whether the jury	4
understood the general intent instruction given in this case to apply to the elements	5
of animal cruelty through negligent mistreatment. The district court did not comply	6
with UJI 14-141, which required the court to “identify [the] crime or crimes” that	7
the instruction applied to. Instead, the court issued an instruction, based on the	8
template for UJI 14-141, that provided:	9
In addition to the other elements of [sic] the [S]tate must prove to your	10
satisfaction 	beyond 	a 	reasonable 	doubt 	that 	[D]efendant 	acted	11
intentionally when he committed the crime. A person acts intentionally	12
when he purposely does an act which the law declares to be a crime,	13
even though he may not know that his act is unlawful. Whether . . .	14
Defendant 	acted 	intentionally 	may 	be 	inferred 	from 	all 	of 	the	15
surrounding circumstances, such as the manner in which he acts, the	16
means used, and his conduct and any statements made by him.	17
(Emphasis added.) On its face, this instruction did not inform the jury that it applied	18
to the crime of cruelty to animals, and no other instruction informed the jury that it	19
could only find Defendant guilty under a negligent mistreatment theory if it found	20
that Defendant “acted intentionally” by “purposely do[ing] an act that the law	21
declares to be a crime.”	22

39
{67} 	The district court instructed the jury on the elements of both practicing	1
veterinary 	medicine 	without 	a license 	and 	animal 	cruelty, 	and 	the 	elements	2
instructions for all twenty-two of the cruelty to animals charges provided that the	3
jury could convict either under a negligent mistreatment theory or on a finding that	4
Defendant had abandoned or failed to provide necessary sustenance to the dogs.	5
Without speculating, we cannot say whether the jury would have understood the	6
grammatically improper and legally erroneous phrase “elements of” to apply to the	7
crime of cruelty to animals by negligent mistreatment, to the alternative theory of	8
abandonment or failure to provide necessary sustenance, or to the very different	9
charge of practicing veterinary medicine without a license. The majority provides	10
no explanation for its apparent conclusion that a rational juror would necessarily	11
have 	concluded 	that 	the 	instruction 	applied 	to 	the 	elements 	of 	negligent	12
mistreatment, and I can think of none. I cannot say with the degree of confidence	13
necessary for this Court to affirm a criminal conviction that the jury understood this	14
ambiguous instruction to apply to the elements of animal cruelty by negligent	15
mistreatment. For that reason alone, I would decline to rely on the instruction.	16
{68} 	Even assuming that the jury understood the instruction to apply to the charges	17
of cruelty to animals by negligent mistreatment, I cannot agree that the jury’s finding	18
of general intent negates the prejudice arising from the district court’s refusal to	19
instruct the jury on the element of criminal negligence. By defining “act[ing]	20

40
intentionally” as “purposely do[ing] an act,” UJI 14-141, as I read it, requires juries	1
to find only that a defendant has committed a crime through his or her voluntary	2
actions.12 A substantial volume of New Mexico authority supports that or a similar	3
interpretation. See, e.g., State v. Ramos, 2013-NMSC-031, ¶ 28, 305 P.3d 921	4
(“[G]eneral intent is only the intention to make the bodily movement which	5
constitutes 	the 	act 	which 	the 	crime 	requires.” 	(quoting 	Wayne 	R. 	LaFave,	6
Substantive Criminal Law § 5.2(e), at 355 (2d ed. 2003))); State v. Hargrove, 1989-	7
NMSC-012, ¶ 10, 108 N.M. 233, 771 P.2d 166 (equating a finding of general	8
criminal intent to a finding that the crime charged was committed through “the free	9
act of the one being tried” (quoting State v. Hittson, 1953-NMSC-018, ¶ 10, 57 N.M.	10
100, 254 P.2d 1063)); State v. Contreras, 2007-NMCA-119, ¶ 16, 142 N.M. 518,	11
167 P.3d 966; Gonzalez, 2005-NMCA-031, ¶ 23; State v. Elliott, 2001-NMCA-108,	12
¶ 61, 131 N.M. 390, 37 P.3d 107 (Sutin, J., dissenting) (“[UJI 14-141] requires only	13
an intent to do an act, where the doing of the act ends up causing harm, even if there	14
is no specific intent to cause harm.”); see also State v. Gee, 2004-NMCA-042, ¶ 15,	15
12One way of framing the question is whether the defendant had the mental
state necessary for his or her actions to qualify as the actus reus of a crime. See 1
Wayne R. LaFave, Substantive Criminal Law § 5.2(e), at 475 (3d ed. 2018)
(“[W]here the definition of a crime requires some forbidden act by the defendant,
his bodily movement, to qualify as an act, must be voluntary. To some extent, then,
all crimes of affirmative action require something in the way of a mental element—
at least an intention to make the bodily movement which constitutes the act which
the crime requires.” (emphasis added)).

41
135 N.M. 408, 89 P.3d 80 (rejecting the defendants’ contention that the district court	1
had committed fundamental error in giving UJI 14-141 in addition to elements	2
instructions that set out the specific intent elements for larceny and forgery because	3
no reasonable juror would have convicted “based only on a purposeful act”).	4
{69} 	Under my reading of the instruction, any jury finding that Defendant “acted	5
intentionally” is nothing more than a finding that Defendant mistreated the dogs	6
through her own purposeful acts. That finding sheds no light on whether the jury	7
found that Defendant mistreated the dogs with the requisite culpability. A person	8
can 	intentionally 	do 	acts 	that 	constitute 	mistreatment 	without 	“willful[ly]	9
disregard[ing] . . . the rights or safety of others,” let alone intending to mistreat. Cf.	10
Schoonmaker, 2008-NMSC-010, ¶ 48 (reasoning that “a person could intend to	11
violently shake a baby without a subjective awareness of the risk of harm or	12
with[out] indifference to that risk”), holding abrogated by State v. Montoya, 2015-	13
NMSC-010, ¶ 38, 345 P.3d 1056 (holding that reckless child abuse resulting in the	14
death of a child under twelve is a lesser-included offense of intentional child abuse	15
resulting in the death of a child under twelve), and overruled on other grounds by	16
Consaul, 2014-NMSC-030, ¶ 48; State v. Ibn Omar-Muhammad, 1985-NMSC-006,	17
¶ 22, 102 N.M. 274, 694 P.2d 922 (stating that the concept of “purposefully	18
engag[ing] in an unlawful act . . . does not require that a defendant know of any risk	19
involved in his actions”). In this case, it is clear—undisputed, even—that Defendant	20

42
intentionally performed the actions that the jury found constituted mistreatment.	1
What is not at all clear, however, is whether the jury found that, in performing those	2
actions, Defendant subjectively appreciated that she was exposing the dogs to a	3
substantial and unjustifiable risk of harm. Because the jury was erroneously	4
instructed on a civil negligence standard, I understand the jury to have found that	5
Defendant mistreated the dogs through intentional acts that were objectively	6
unreasonable, a finding that cannot support Defendant’s convictions.	7
{70} 	Although I believe the majority understands the general intent instruction	8
much as I do, that understanding compels me to reach a different conclusion than	9
that reached by the majority. The majority interprets the jury’s finding under the	10
instruction to be a finding that Defendant “intended to commit an act”; committed	11
“intentional 	acts 	constituting 	proscribed 	conduct”; 	or 	committed 	“intentional,	12
negligent act[s].” Majority Op. ¶ 32. The majority concludes, however, that this	13
finding renders the error in the instruction harmless because the acts that Defendant	14
intentionally performed themselves “constituted animal cruelty” and “the jury	15
therefore necessarily found that Defendant . . . acted at a standard meeting or	16
exceeding criminal negligence.” Id. ¶ 33. I cannot subscribe to this analysis, which	17
I believe to be inconsistent with the plain language of our cruelty to animals statute.	18
In my view, because the statute prohibits “negligently mistreating, injuring, killing	19
without lawful justification or tormenting an animal,” Defendant’s acts cannot in	20

43
and of themselves “constitute[] animal cruelty” or “proscribed conduct.” See id.	1
¶¶ 32-33. Although the jury could certainly have used those acts as circumstantial	2
evidence of the mental state Defendant possessed at the time she mistreated or	3
injured the dogs, the acts do not in and of themselves establish Defendant’s intent.	4
And because the element of intent was a disputed issue in this case, there is at least	5
“a distinct possibility,” Magby, 1998-NMSC-042, ¶ 15, that the jury convicted	6
Defendant without considering whether she had acted with criminal negligence upon	7
finding that Defendant’s actions demonstrated that she had unreasonably mistreated	8
or injured the dogs.	9
{71} 	State v. Stewart, 2005-NMCA-126, does not support the majority’s analysis.	10
The defendant in 	Stewart 	was convicted of cruelty to animals by negligent	11
mistreatment on the basis of evidence showing that he had intentionally kicked a	12
puppy. Id. ¶ 1. On appeal, he contended that his conviction for cruelty to animals by	13
negligent mistreatment was supported by insufficient evidence because the evidence	14
showed that he had intentionally mistreated the puppy, a crime that he argued was	15
punishable only as extreme cruelty to animals under Section 30-18-1(E). Stewart,	16
2005-NMCA-126, ¶ 28. 13 We disagreed, concluding that evidence sufficient to	17
13 Compare 	Stewart, 	2005-NMCA-126, 	¶ 	28 	(reciting 	the 	defendant’s
argument), and Schoonmaker, 2008-NMSC-010, ¶ 46 n.4 (“[O]ne cannot commit an
intentional act and an unintentional but substantially risky act at the same time, even
though the act is voluntary as to both and the evidence may be sufficient to charge
both offenses as alternative theories.” (internal quotation marks and citation

44
prove the mens rea element “intentionally” of extreme cruelty to animals, § 30-18-	1
1(E), is necessarily sufficient to prove the mens rea element of negligence—which	2
the Court presumed was criminal negligence—applicable to the basic crime of	3
cruelty to animals, § 30-18-1(B). Stewart, 2005-NMCA-126, ¶ 32. We reasoned that	4
the statutory element “intentionally” meant “purposely,” relying for some reason on	5
the general intent instruction and the instruction on the element “intentional” then	6
applicable in the child abuse context to equate the two words. Id. ¶ 32 (citing UJI	7
14-141 and UJI 14-610 NMRA (2005)). Having concluded that “intentionally”	8
meant “purposely,” we looked for guidance in the Model Penal Code, which	9
provides that “[w]hen recklessness suffices to establish an element, such element	10
also is established if a person acts purposely or knowingly.” Model Penal Code §	11
2.02(5); Stewart, 2005-NMCA-126, ¶ 33. And, for the final step in our analysis, we	12
implicitly reasoned that the element “intentionally” of the extreme cruelty subsection	13
described the same mental state as the culpability element “purposely” under the	14
Model Penal Code: a “conscious object” to engage in a particular type of conduct or	15
cause a particular result. See Model Penal Code § 2.02(2)(a)(i) (“A person acts	16
purposely with respect to a material element of an offense when[,] if the element	17
omitted)), with Montoya, 2015-NMSC-010, ¶ 41 (“One can commit child abuse
recklessly without acting intentionally, but one cannot intentionally commit child
abuse without ‘consciously disregarding a substantial and unjustifiable risk,’ the
definition of recklessness.” (alteration, internal quotation marks, and citation
omitted)).

45
involves the nature of his conduct or a result thereof, it is his conscious object to	1
engage in conduct of that nature or to cause such a result[.]”); see also Stewart, 2005-	2
NMCA-126, ¶ 33. We therefore held that “where . . . [a d]efendant concedes that he	3
acted purposely, i.e. [that] it [was] his ‘conscious object to’ injure an animal, this is	4
sufficient evidence to establish that he had a ‘willful disregard’ for that animal’s	5
safety.” Stewart, 2005-NMCA-126, ¶ 31 (emphasis added).	6
{72} 	Stewart has no bearing on the issue in this case: whether the given general	7
intent instruction rendered the error in refusing Defendant’s requested criminal	8
negligence instruction harmless. The Court in Stewart held only that evidence	9
sufficient to prove the statutory element “intentionally” of extreme cruelty to	10
animals is necessarily sufficient to prove the statutory element “negligently” of basic	11
animal cruelty. Id. ¶ 32. The case therefore provides no support for the proposition	12
that a defendant necessarily acts with criminal negligence whenever the defendant	13
“purposely does an act,” UJI 14-141, constituting mistreatment. And because	14
Stewart involved a challenge to the sufficiency of the evidence, rather than a	15
reversible error analysis of an erroneous jury instruction, the Court’s analysis there	16
should not inform ours here. Here, we are not asked to determine whether the	17
evidence was sufficient to prove that Defendant willfully disregarded the dogs’	18
safety and endangered them—whether the jury could have found on the basis of the	19
evidence and inferences favorable to the State that Defendant acted with criminal	20

46
negligence in mistreating or injuring the dogs. See generally State v. Tollardo, 2012-	1
NMSC-008, ¶ 39, 275 P.3d 110 (“[On sufficiency review], the appellate court must	2
determine whether, after reviewing the evidence in the light most favorable to the	3
prosecution”—“indulg[ing] all reasonable inferences and resolv[ing] all conflicts in	4
the evidence in favor of the verdict”—“any rational trier of fact could have found	5
the essential elements of the crime beyond a reasonable doubt.” (internal quotation	6
marks, emphasis, and citations omitted)). Instead, the issue before us is whether there	7
is a “distinct possibility” that the jury convicted Defendant on the basis of an	8
erroneous understanding of the law—whether, in light of the given instructions and	9
evidence, the jury could have convicted Defendant upon a finding of only civil	10
negligence. As I have explained, I think the answer is yes.	11
{73} 	I acknowledge that certain language in Stewart can be understood to support	12
the majority’s reading of the case. See 2005-NMCA-126, ¶ 31 (“The evidence was	13
sufficient here to show that [the d]efendant acted with willful disregard for the	14
puppy’s safety because, as [the d]efendant concedes, he acted intentionally in	15
kicking the puppy.” (emphasis added)); id. ¶ 32 (“The question then is whether	16
evidence that a defendant acted intentionally, purposely, or deliberately, in harming	17
an animal, is sufficient to establish that the defendant acted with ‘willful disregard’	18
for the animal’s safety. For purposes of the animal cruelty statute, we hold that it is.”	19
(emphasis added)). In my view, however, the language is dicta to that extent. As	20

47
discussed above, the issue before us in Stewart was whether a conviction for cruelty	1
to animals by negligent mistreatment could be upheld on the basis of evidence that	2
would support a finding of the statutory element “intentionally” in the extreme	3
cruelty to animals context. Our entire analysis consequently turned on the meaning	4
of that element. And, as our opinion made clear by its reliance on the Model Penal	5
Code, we interpreted the “intentional[ity]” element to refer to a defendant’s	6
“conscious objective” to engage in a particular type of conduct or cause a particular	7
result, rather than to the language of the general intent instruction.	8
{74} 	Although the majority and I read Stewart differently, we at least appear to	9
agree on the meaning of UJI 14-141. The State, however, reads the instruction	10
differently. In its view, the instruction sets forth a “more stringent” standard by	11
requiring the jury to find a mens rea higher than—and therefore encompassing—	12
criminal negligence. The State’s reading of the instruction’s language also finds	13
support in our law. See, e.g., State v. Lucero, 2017-NMSC-008, ¶¶ 28-32, 389 P.3d	14
1039 (agreeing “that a conviction of intentional child endangerment would be	15
suspect if it were based on proof of some intentional act that accidentally (or even	16
recklessly) placed [a child] in a dangerous situation[,]” but holding that an elements	17
instruction requiring the jury to find that the defendant had “acted intentionally,”	18
separately defined as “purposely do[ing] an act,” was not “incomplete” and did not	19
“permit[] such a result”); Ramos, 2013-NMSC-031, ¶ 38 (Maes, C.J., dissenting)	20

48
(“Although [UJI 14-141] requires a showing that the defendant made a bodily	1
movement that constituted the act of the crime, . . . [its] second prong . . . requires	2
more. A jury must also infer from the surrounding circumstances whether the	3
defendant acted intentionally, meaning that he acted with intent to violate [a]	4
restraining order.”); Duttle, 2017-NMCA-001, ¶ 18 (interpreting the general intent	5
instruction, when given in conjunction with an instruction on the elements of	6
negligent 	cruelty 	to 	animals, 	to 	require 	evidence 	that 	the 	defendant 	had	7
“intentionally mistreated, injured, or tormented or abandoned or failed to provide	8
necessary 	sustenance 	to” 	the 	animals 	(internal 	quotation 	marks 	and 	citation	9
omitted)); Elliott, 2001-NMCA-108, ¶ 9 (reasoning that, because the district court	10
had given the general intent instruction, “[the d]efendant could not be convicted for	11
an act of mere carelessness where he had no intent to fail to appear”); State v. Garcia,	12
No. 33,756, dec. ¶ 30 (N.M. Sup. Ct. June 26, 2014) (non-precedential) (indicating	13
in dicta that an erroneously given general intent instruction on a charge of negligent	14
child abuse had not resulted in prejudice to the defendant because the instruction had	15
“increased the burden on the [s]tate to prove that [the d]efendant purposefully	16
committed the act of which he was convicted”). If the State is correct in its	17
interpretation of UJI 14-141, and if one accepts the dubious assumption that the jury	18
understood the instruction to apply to the charges of negligent cruelty, then the jury’s	19

49
finding that Defendant “act[ed] intentionally” necessarily includes a finding that	1
Defendant acted with at least criminal negligence.	2
{75} 	While I disagree with the State’s interpretation, the judges of this Court are in	3
no position to definitively interpret UJI 14-141, an instruction that our Supreme	4
Court has repeatedly considered. See, e.g., Ramos, 2013-NMSC-031, ¶ 28. That does	5
not mean, however, that the issue is settled or unworthy of consideration. The	6
instruction is ubiquitous in New Mexico’s criminal trials, but it has remained subject	7
to conflicting interpretations.14 And it strikes me as problematic to interpret the same	8
instruction as though it accurately describes both the voluntariness inherent in every	9
crime and a significantly more culpable intentionality element. Cf. Suazo, 2017-	10
NMSC-011, ¶ 24 (“It would be incongruent to interpret our second-degree murder	11
statute to require a less culpable mental state (ordinary negligence) than the	12
minimum level of culpability required by involuntary manslaughter (criminal	13
negligence).”). If our appellate courts cannot settle on a consistent interpretation, I	14
do not see how we can expect juries to do so.	15
14 This lack of clarity does not appear to have been a recent development. See,
e.g., State v. Sheets, 1980-NMCA-041, ¶¶ 45, 48, 94 N.M. 356, 610 P.2d 760 (stating
that the language “purposely does an act” “covers” the concept of willfulness—
intentional action “in the sense that [the defendant] was aware of what he was
doing”—and that the instruction conveys the concept of “conscious wrongdoing”
when what the defendant was doing turns out to be “an act [that] the law declares to
be a crime” (internal quotation marks and citation omitted)).

50
{76} 	Fortunately, 	in 	this 	case 	it 	is 	unnecessary 	to 	determine 	whether 	the	1
interpretation that the State offers on appeal is correct because that interpretation	2
does not match the theory the State presented at trial. The State’s trial theory was	3
that Defendant had negligently mistreated or injured the dogs, not that she had	4
intended to injure or mistreat them. I am not aware of any basis for concluding that	5
the jury on its own initiative wandered beyond the State’s trial theory to find that	6
Defendant intended to mistreat or injure the dogs. Thus, even if the evidence was	7
consistent with a theory of intentional mistreatment or injury, the State’s reading of	8
the instruction on appeal would provide this Court with no basis to affirm. Cf.	9
Lucero, 2017-NMSC-008, ¶¶ 33-39 (indicating in dicta that any error in the	10
correctly-given intent instruction was harmless because the state had “never flinched	11
from its early decision to prove to the jury that [the d]efendant had intentionally,	12
violently abused [the victim], resulting in her death”); Magby, 1998-NMSC-042, ¶	13
21 (noting that the state had conceded error in the district court’s giving of the	14
general intent instruction where the state’s sole theory throughout trial had been that	15
the defendant’s conduct was negligent).	16
CONCLUSION	17
{77} 	The erroneous instruction deprived Defendant of her right to have the jury	18
determine whether she acted with criminal negligence. Defendant’s intent was a	19
disputed issue at trial, and we consequently cannot determine whether the jury would	20

51
have found criminal negligence had it been properly instructed. The general intent	1
instruction given in this case did not render the error harmless because, even if the	2
jury had understood it to apply to the elements of negligent mistreatment, the	3
instruction required it to find only that Defendant had acted voluntarily, without any	4
consideration of Defendant’s subjective mental state. And, even if the instruction did	5
require the jury to find that Defendant acted with a mental state more culpable than	6
criminal negligence, there is no reason to believe that the jury understood that	7
requirement because the State at trial pursued conviction only under a negligent	8
mistreatment theory. I therefore cannot join my esteemed colleagues in upholding	9
Defendant’s convictions for cruelty to animals, and I must dissent.	10
_________________________________	11
ZACHARY A. IVES, Judge	12