David White and Paula Moctezuma White were each charged with five felony counts of animal mistreatment causing death, for five horses prosecutors say starved to death on their Pleasant Prairie farm.
Those carcasses, as well as dozens of other animals in poor condition, were moved from their farm in April. Homes have been found for most of the animals.
The defendants’ attorneys have challenged the felony counts against them, asking the court to reduce one felony and to dismiss the four other counts. In the motion, attorneys for both defendants assert the first felony should be a misdemeanor, based on the evidence.
“In order to support a felony charge, the state would have to allege not only death of an animal, but also that the defendant affirmatively acted with the intent to cause death, rather than causing death by omission,” the motion states.
The next four counts should be dismissed, the motion argues, because the criminal complaint only refers to a necropsy of one horse showing death by starvation, and there is nothing else definitive to support the other charges. The defense also claims prosecutors knew there could be problems with the evidence presented in the complaint as it relates to those four charges, and so waited until after the couple waived their preliminary hearings to add them.
“Had counts two through five been included in the complaint, they would have been dismissed for lack of probable cause,” the motion states. “The state cannot be permitted an end-run around the probable cause requirement by excluding these chargs from the complaint and then adding the charges in the post-waiver information.”
Prosecutors disagreeThe state says the felony charge is appropriate and it is not necessary that someone intended to kill an animal while mistreating it for a felony to be the applicable charge.
“When one fails to care for or feed an animal, one has the intent to treat the animal in a cruel manner,” the state’s response reads. “The defendants made the conscious choice to not feed the animals day after day.”
The state also says the four additional counts were properly added, and there is enough evidence presented to support them. Additionally, the state says the defendants had notice the charges were coming before they waived their preliminary hearings.
A hearing on the motions is expected Sept. 6.
More charges remain possibleIn court Wednesday, Assistant District Attorney Jennifer Phan said the Whites could still be charged for offenses related to the animals that were still alive when investigators went onto the property to investigate allegations of animal mistreatment. They are waiting for referrals, Phan said.
Many of the animals have been adopted, and are living in new homes.
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| Rescued and going to new homes |
The Whites relinquished ownership of the animals following a civil action filed against them by Pleasant Prairie. The village has a second open civil suit against the couple over conditions of their property.
(Kenosha News - July 31, 2013)
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