Sunday, November 25, 2007
A man who has been charged with three counts of animal cruelty has moved for each count to be tried separately with different juries. Doug Kalberg, who owns the Dog Zone dog daycare center in Longview, Washington, has been charged with first and second degree animal cruelty for allegedly abusing two dogs in August and one dog in December at Dog Zone. If Judge Stephen Warning grants the motion, jurors in each case would only be able to hear evidence relating to the abuse of the dog covered by the case and could not hear evidence relating to the alleged abuse of the other two dogs.
In making the motion, Kalberg's attorney argued that combining the charges in one trial could prejudice the jury into believing Kalberg has a propensity to abuse animals. Kalberg's argument might be successful because under Washington Rule of Evidence 404(a), evidence of a person's character is inadmissible to prove that he has a propensity to act in a certain manner and that he acted in conformity with that propensity at the time of the alleged crime. Thus, for instance, the prosecutor in Kalberg's case would not be permitted to present evidence that Kalberg abused the two dogs in August to prove that he has a propensity to abuse dogs and that he acted in conformity with that propensity when he abused the third dog in December.
Washington Rule of Evidence 404(b), however, does allow for the admission of other crimes, wrongs, or acts to prove a common plan or scheme or modus operandi on the part of an individual, although courts differ sharply over how to apply this rule. Thus, for instance, in Sharp v. State, 837 P.2d 718, 725 (Alaska.App. 1992), an Alaska court found that under its version of Rule 404(b), the prosecution could present evidence that the defendant allegedly sexually abused four children under the theory that he had the common plan or scheme to use his position as chief-lieutenant at a day-care center to obtain access to young children. On the other hand, in State v. Kirsch, 662 A.2d 937 (N.H. 1995), the Supreme Court of New Hampshire found that allegations that the defendant used his position as a church staff member to molest several young girls did not satisfy the common plan or scheme requirement.
In State v. Lough, 889 P.2d 487 (Wash. 1995), the Washington Supreme Court set out a four part analysis to be applied before admitting evidence pursuant to the "common plan or scheme" rationale: the prior acts must be (1) proved by a preponderance of the evidence, (2) offered for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.
It appears that Washington courts have been fairly liberal in applying Rule 404(b). For instance, in Doe v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 167 P.3d 1193, 1207 (Wash. App. Dic. 1 2007), a Washington court found that in a case where the defendant was charged with sexually abusing two stepdaughters, the biological daughter of the defendant could testify that her father sexually abused her in a similar manner under the "common plan or scheme" rationale. Thus, if there is sufficient evidence that Kalberg abused all three dogs and the acts of abuse were similar, Judge Warning is unlikely to grant the motion for separate trials.