State of Minnesota v. Carmen Marie Burth

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0004

State of Minnesota,
Respondent,

vs.

Carmen Marie Burth,
Appellant.

Filed December 26, 2023
Affirmed
Bjorkman, Judge

Chisago County District Court
File No. 13-CR-19-1031

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Janet Reiter, Chisago County Attorney, Brandon J. Pellerin, Assistant County Attorney,
Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and

Ede, Judge.

NONPRECEDENTIAL OPINION

BJORKMAN, Judge

Appellant challenges her conviction of animal mistreatment for failing to provide

her horses necessary food or shelter, arguing that the district court plainly erred by
admitting (1) expert testimony on the ultimate issue and (2) irrelevant and prejudicial

evidence of other aspects of the horses’ health and wellbeing, unrelated to food or shelter.

She asserts additional arguments in a pro se supplemental brief. We affirm.

FACTS

Appellant Carmen Marie Burth keeps “rescued” horses on her property in North

Branch. In early September 2019, Animal Humane Society investigator Amanda Oquist

received a complaint about “skinny” horses on Burth’s property. When she went to the

property, Oquist saw four or five horses that appeared “very skinny.” Because she could

only view the horses, she was unable to use the Henneke Body Condition Scoring System,

a tool that scores a horse’s body condition on a scale of one to nine based on feeling for

muscle and fat around the horse’s body. A score of one means the horse is emaciated and

a score of nine means the horse is obese; an ideal score is between four and six. But Oquist

visually estimated the horses’ body-condition scores as between one and three.

Oquist visited the property three more times between September and November.

Over time, she saw the horses look “a little bit better,” then lose the weight gains. She also

received a follow-up call from the original complainant about a lack of hay on the property,

and Oquist consistently saw little or no hay available to the horses. In November, after

Burth canceled a veterinary appointment for one of the horses, Oquist sought to coordinate

a herd assessment. Burth declined, saying that she would get her own assessment. Oquist

then shared the results of her investigation with police, who obtained a search warrant.

On November 15, police searched Burth’s property. During the search, Oquist and

Dr. Michelle Wiberg, a veterinarian who had treated some of Burth’s horses, assessed the

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20 horses on the property using the Henneke Body Condition Scoring System. They

recommended the removal of all horses with a score of 2.5 or lower, indicating a need for

“additional nutrition,” and those with higher scores but requiring “significant veterinary

care.” Eleven horses were seized and transferred to veterinary facilities for treatment.

Burth was charged with one count of failing to provide an animal “necessary food,

water, or shelter” in violation of Minn. Stat. § 343.21, subd. 2 (2018). At trial, Oquist and

Dr. Wiberg testified consistent with the facts stated above. Dr. Wiberg and the two

veterinarians who treated the seized horses offered additional expert testimony about the

horses’ body condition and their assessment of the horses’ care based on their condition.

Burth countered with the testimony of a horse-rescue expert who opined as to the horses’

body condition based on his review of photographs of the horses. The jury found Burth

guilty, and the district court imposed a stayed 90-day jail sentence.

Burth appeals.

DECISION

I. The district court did not commit prejudicial plain error in the admission of
evidence.

Where, as here, the defendant does not object to the admission of evidence, they

forfeit review of the issue. State v. Fraga, 898 N.W.2d 263, 276 (Minn. 2017). This

principle “encourages defendants to object while in the trial court so that any errors can be

corrected before their full impact is realized.” State v. Pearson, 775 N.W.2d 155, 161

(Minn. 2009). It also is consistent with our refusal to presume error on appeal, particularly

in matters committed to the district court’s broad discretion such as evidentiary rulings.

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See Dolo v. State, 942 N.W.2d 357, 362 (Minn. 2020) (requiring deference to district

court’s “exercise of discretion in evidentiary matters” (quotation omitted)); Waters v.

Fiebelkorn, 13 N.W.2d 461, 464 (Minn. 1944) (“[O]n appeal error is never presumed.”).

Nonetheless, we have “limited power” under the plain-error standard to correct certain

unobjected-to errors. Fraga, 898 N.W.2d at 277 (quotation omitted). To obtain relief

under that standard, a defendant generally must show that (1) there was an error, (2) it was

plain “in that it violates or contradicts case law or a rule,” and (3) it affected the defendant’s

substantial rights. Id. Even if the first three requirements are met, we “may correct the

error only when it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Pulczinski v. State, 972 N.W.2d 347, 356 (Minn. 2022).

Burth argues that the district court plainly erred by admitting (1) expert testimony

on the ultimate issue and (2) evidence that is irrelevant and unfairly prejudicial because it

encompasses health concerns unrelated to food and shelter. We address each argument in

turn.

Expert Testimony

An expert witness may testify in the form of an opinion. Minn. R. Evid. 702. That

opinion testimony may address “an ultimate issue to be decided by the trier of fact.” Minn.

R. Evid. 704. But an expert “may not offer an opinion as to a legal issue or a mixed question

of law and fact.” State v. Xiong, 829 N.W.2d 391, 396 (Minn. 2013). Nor may an expert

opine as to matters within the jurors’ lay knowledge and experience because it “will not

add precision or depth to the jury’s ability to reach conclusions.” State v. Obeta, 796

N.W.2d 282, 289 (Minn. 2011) (quotation omitted).

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 Burth contends the district court plainly erred by permitting the three veterinarians

to testify as to the ultimate issue—whether she deprived the horses of necessary food and

shelter. We disagree. The experts testified about what the horses’ body condition and

other health considerations revealed about the adequacy of the food and shelter the horses

received. This testimony did not purport to decide the ultimate issue the jury was asked to

decide. Rather, it helped the jurors understand what the photographs and descriptions of

the horses mean with respect to food and shelter. Accordingly, we discern no plain error

in admitting the testimony.

Moreover, Burth is not entitled to relief unless the claimed error affected her

substantial rights. In assessing whether an error affected a defendant’s substantial rights,

one factor we consider is the strength of the evidence against the defendant. Fraga, 898

N.W.2d at 277. That factor is dispositive here because the evidence of Burth’s guilt is

overwhelming. Throughout the fall of 2019, Oquist consistently saw very skinny horses

on Burth’s property and little to no hay available to them. Photographs from that time

depict horses as so thin that their ribs and other bones are sticking out. The three

veterinarians who physically examined the horses described them as “skeletal” and

“significantly” underweight, and gave several horses body-condition scores at or below 2.

Even Burth’s expert agreed that several of the horses could have body-condition scores as

low as 2. The record also contains evidence that the available constructed shelters were

not large enough to protect all 20 horses from the elements, and numerous horses had a

skin condition known as “rain rot” indicative of insufficient shelter. Because the record

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negates any reasonable likelihood that the challenged expert testimony substantially

affected the verdict, we conclude that any error in admitting the testimony was harmless.

Evidence of Other Health Concerns

Relevant evidence is generally admissible. Minn. R. Evid. 402. Evidence is

relevant if it has “any tendency” to make the existence of any material fact more or less

probable. Minn. R. Evid. 401. This is a low bar: “A fact is relevant if, when taken alone

or in connection of other facts, it warrants a jury in drawing a logical inference assisting,

even though remotely, the determination of the issue in question.” State v. Swinger, 800

N.W.2d 833, 839 (Minn. App. 2011) (quotation omitted), rev. denied (Minn. Sept. 28,

2011). Evidence is inadmissible if it is not relevant, Minn. R. Evid. 402, or if it is

confusing, misleading, or unfairly prejudicial, Minn. R. Evid. 403.

Burth contends the district court plainly erred by admitting evidence of other aspects

of the horses’ health and well-being, unrelated to food or shelter, because that evidence is

irrelevant and unfairly prejudicial. We are not persuaded. Some of the challenged evidence

is plainly relevant, such as one horse’s apparent Cushing’s Disease, which causes excess

hair growth that interferes with any visual assessment of the horse’s body condition, and

the unsafe environment created by “hazard[ous]” uncapped fence posts, which is

reasonably related to the concept of shelter. 1 And some of it—evidence of the horses’

dental care, hoof condition, parasites, and other physical conditions—provides helpful

1
The jury instructions did not define the term shelter.

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context for the jury in determining whether the horses’ condition resulted from a lack of

food or shelter.

Even if the district court plainly erred by admitting evidence of the horses’ other

health conditions, Burth has not demonstrated that this evidence affected her substantial

rights. As detailed above, the evidence shows that numerous horses in Burth’s care were

so thin as to be skeletal, despite months of Oquist’s efforts to ensure Burth was obtaining

sufficient food for them, and several horses had “rain rot” indicative of insufficient shelter.

On this record, there is no reasonable likelihood that the jury would have acquitted Burth

if evidence of the horses’ other health issues had been excluded.

II. None of Burth’s pro se arguments entitle her to relief.

In a pro se supplemental brief, Burth argues that (1) the district court violated her

confrontation right by admitting the statements of the complainant, who did not testify;

(2) the district court plainly erred by admitting irrelevant evidence as to the zoning of her

property; (3) the prosecutor engaged in unobjected-to misconduct throughout the trial; and

(4) the district court abused its discretion by denying her motion for a mistrial based on

prosecutorial misconduct during closing argument. We address each argument in turn.

Confrontation

Under the Confrontation Clause, a criminal defendant has the right “to be

confronted with the witnesses against him.” U.S. Const. amend. VI. Admission of an out-

of-court statement violates the Confrontation Clause if the statement is “testimonial,” it

was admitted for the truth of the matter asserted, and the defendant was not able to cross-

examine the declarant. Andersen v. State, 830 N.W.2d 1, 9 (Minn. 2013) (citing Crawford

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v. Washington, 541 U.S. 36, 59 & n.9 (2004)). We review de novo whether the admission

of evidence violates the Confrontation Clause. State v. Sutter, 959 N.W.2d 760, 764 (Minn.

2021). A confrontation violation does not require reversal if it was harmless beyond a

reasonable doubt. State v. Swaney, 787 N.W.2d 541, 555 (Minn. 2010).

Burth argues that the district court violated her confrontation right by admitting,

through Oquist’s testimony, the statements of the non-testifying complainant. We

disagree. The record shows that the statements were not admitted for the truth of the matter

asserted. Rather, Oquist referenced the two calls she received from the complainant to

explain why she went to Burth’s property to investigate. Testimony about another’s

statements that provide context for the witness’s knowledge and conduct is a proper “non-

truth purpose.” Id. at 552-53. And the limited role the statements played at trial, coupled

with the overwhelming evidence against Burth, persuades us that the guilty verdict was

“surely unattributable” to their admission. See id. at 555.

Zoning Evidence

Burth next challenges the admission of testimony that she violated the applicable

zoning code by having too many horses for the size of her property, arguing that it is

irrelevant. Burth objected to the testimony at trial as stating a legal conclusion but did not

contend that it was irrelevant. “A defendant’s objection to the admission of evidence

preserves review only for the stated basis for the objection or a basis apparent from the

context of the objection.” State v. Vasquez, 912 N.W.2d 642, 649 (Minn. 2018). Because

Burth did not make a relevance objection, we review only for plain error, under which

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Burth must show error that was plain and affected her substantial rights. Fraga, 898

N.W.2d at 277.

She has not met that standard. The record shows that if horses lack sufficient pasture

to graze on—whether due to its size, poor maintenance, inclement weather, or some

combination of causes—the horses must have alternative food sources. Because the zoning

code bears on the appropriate amount of grazing pasture for the horses, and therefore the

amount of food available to them, the evidence is not plainly irrelevant. And as with other

challenged evidence, it played a limited role in a trial that presented the jury with

overwhelming evidence that the horses were deprived of necessary food and water, making

any error in admitting the zoning testimony harmless.

Prosecutorial Misconduct

Burth argues that the prosecutor engaged in misconduct throughout trial, pointing

to numerous aspects of the prosecutor’s conduct to which she did not object. As with

evidentiary issues, we review unobjected-to prosecutorial conduct only for plain error.

State v. Patzold, 917 N.W.2d 798, 806 (Minn. App. 2018), rev. denied (Minn. Nov. 27,

2018). But we apply a “modified” plain-error standard under which the defendant must

show that there was a plain error and, if they do so, the state must show that it did not affect

the defendant’s substantial rights. Id.

Burth first contends the prosecutor committed misconduct by eliciting testimony

from Dr. Wiberg that Burth had canceled veterinary appointments for lack of funds,

asserting that this is character evidence and hearsay. Both character evidence and hearsay

are inadmissible. Minn. R. Evid. 404(b), 802. But evidence that Burth lacked the resources

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to pay for veterinary care is not evidence of her character; it is evidence of her financial

circumstances that bears on whether she was able to meet her obligation to provide the

horses necessary food and shelter. See Fraga, 898 N.W.2d at 275 (concluding that

evidence of defendant’s financial resources was not character evidence but relevant to

charge of child neglect). Nor is it hearsay; it is Burth’s own statements offered as evidence

against her. Minn. R. Evid. 801(d)(2).

Second, Burth argues that the prosecutor committed misconduct during closing

argument by (1) aligning herself with the jury—against Burth—by using the pronoun “we”;

(2) inflaming the jury’s passions with sympathetic descriptions of the horses’ condition,

dependence, and prospects; (3) vouching for the credibility of the state’s witnesses;

(4) misstating testimony about Burth rescuing too many horses, Burth’s ability to get hay

for the horses, and the defense expert’s website promising “results”; (5) implying that

Burth had a burden of proof by noting that Burth’s husband testified about regular hay

purchases and questioning where all of the hay was; and (6) demeaning the defense expert

by noting that he is a professional witness who is paid for his testimony.

When analyzing a claim of prosecutorial misconduct during closing argument, we

consider the argument “as a whole,” not “selected phrases and remarks.” State v. Smith,

876 N.W.2d 310, 335 (Minn. 2016) (quotation omitted). The argument “need not be

colorless, so long as it is based on the evidence or reasonable inferences from that

evidence.” State v. Jones, 753 N.W.2d 677, 691-92 (Minn. 2008). Based on our careful

review of the prosecutor’s entire closing argument, we conclude that none of the challenged

remarks amount to plain error. Without using inflammatory or exclusionary language, the

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prosecutor accurately described the evidence, proposed reasonable inferences the jury

could draw from it, and suggested reasons to credit or discredit witnesses. Accordingly,

Burth’s claim of plain error in the prosecutor’s closing argument fails.

Mistrial

Finally, Burth argues that the district court abused its discretion by denying her

motion for a mistrial based on the prosecutor’s reference during closing argument to Burth

possessing more horses than the zoning code permits. “We review the denial of a motion

for a mistrial for an abuse of discretion because the district court is in the best position to

evaluate the prejudicial impact, if any, of an event occurring during the trial.” State v.

Bahtuoh, 840 N.W.2d 804, 819 (Minn. 2013). A district court should not grant a mistrial

unless “there is a reasonable probability that the outcome of the trial would be different.”

State v. Chavez-Nelson, 882 N.W.2d 579, 590 (Minn. 2016).

In the challenged portion of her closing argument, the prosecutor referenced

testimony about the size of Burth’s property, the number of horses on it, and how that

comported with zoning limits—all of which was admitted either without objection or over

a limited objection that it involved a legal conclusion. The prosecutor did not argue that

Burth violated the zoning code. She argued only that, given the size of Burth’s property,

“[t]he maximum amount of horses that could live and eat that grass would be 9.” We see

no impropriety in this reference because it pertained directly to the food-deprivation

charge. And we are not persuaded—for the reasons discussed above—that there is a

reasonable probability that granting a mistrial and retrying the case would yield a different

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outcome. On this record, we discern no abuse of discretion in the district court’s denial of

Burth’s motion for a mistrial.

Affirmed.

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