Filed in District Court

State of Minnesota
STATE OF MINNESOTA DEC 28 2020 IN DISTRICT COURT
COUNTY OF HUBBARD NINTH JUDICIAL DISTRICT

State of Minnesota,
Plaintiff, Court File No. 29-CR-19-470

V. OMNIBUS ORDER

Timothy Deane Pearson,

Defendant.

This matter came on for a hearing on October 20, 2020 before the

undersigned, Judge of District Court, on Defendant's motion to dismiss for lack of

probable cause and motion to suppress. The Court appeared Via Zoom

technology.

Timothy Pearson personally appeared with his attorney Zenas Baer,

Attorney at Law. Jonathan Frieden personally appeared on behalf of the State of
Minnesota.

The Court heard testimony from William Schlag, Hubbard County Sheriff’s

Investigator and Timothy Pearson, the Defendant. A Florence packet was filed by
the State on October 16, 2020. The Court accepted Exhibits 1-10 submitted by the

Defense. The Defense offered Exhibit 11, but upon a proper objection by the State,
Exhibit 11 was not admitted into evidence.

Based upon all of the files, records and proceedings herein, the Court makes
the following:

FINDINGS OF FACT

1. On April 25, 2019, Timothy Deane Person, the defendant in this case,
was charged with the following three counts: Count 1, exposing domestic animals
to disease in violation of Minn. Stat. §609.599, subd. 1(a); Count 2,
overwork / mistreat animals-torture in violation of Minn. Stat. §343.21 subd. 1; and
Count 3, overwork, mistreat animals-torture in Violation of Minn. Stat. §343.21,
subd. 1.

2. The Complaint alleges the crimes occurred on or about May 22, 2016
and continued through April 22, 2019 and occurred at Mr. Pearson’s property at
17007 County Road 18, Hennrietta Township in Hubbard County, Minnesota

(hereinafter the ”Ranch”).

3. The Court heard testimony from Investigator William Schlag of the

Hubbard County Sheriff’s Office. He has been an investigator since 2016 and
served as a deputy sheriff at the Hubbard County Sheriff’s Office since 2009. He
has been POST licensed since 2009. He has specialized training in investigating

animal complaints through an animal cruelty investigations course.

4. On or about August 31, 2018, Hubbard County Sheriff's Investigator

William Schlag, was dispatched to the Ranch based on a report of animal

mistreatment or neglect. When he arrived at the Ranch he met with Gregory

Swallow, an employee on the Ranch and Donna Scott, Mr. Swallow’s girlfriend
who lived in a camper on the Ranch. Inv. Schlag spoke with Ms. Scott and Mr.
Swallow who were concerned about the welfare of the animals on the Ranch and

provided Inv. Schlag 27 photographs of the Ranch and some the animals. Inv.
Schlag took a statement from Mr. Swallow.

5. On September 14, 2018, Inv. Schlag applied for a search warrant to

search the Ranch, including parcels 1 through 14 as listed in the warrant
application located in Henrietta Township and Arago Township, all in Hubbard
County to include photographs and digital video of the animals on the Ranch,
areas on the Ranch showing where animals had been left to rot, and enclosures

where animals are kept, including barns and sheds, and permission to bring a

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veterinarian on site as well. Inv. Schlag checked GIS records and determined Mr.
Pearson was the owner of the Ranch.

6. Inv. Schlag based his warrant application affidavit on the recorded

statement he obtained from Mr. Swallow and the 27 photographs Mr. Swallow

provided showing the animals, the "boneyard," and feed on the Ranch.

7. On September 14, 2018, the Honorable Paul Rasmussen, now retired,

issued the warrant authorizing the search. That same day, Inv. Schlag executed
the search warrant. Inv. Schlag attempted to contact Mr. Pearson. Eventually,

Deputy Troy Christianson was able to contact Mr. Pearson who said he was too
busy to be present during the search warrant execution.

8. In his motion to suppress and motion to dismiss for lack of probable

cause, filed June 10, 2019, Defendant moves the Court for (1) an order dismissing
all three counts for lack of probable cause to charge and, specifically, because a

specific animal was not named or described in each count; and (2) an order
suppressing any and all evidence taken on the grounds that such evidence was
seized in violation of Defendant’s constitutional rights.

9. Defense did not brief or argue the issue of the search.

Based on the foregoing Findings of Fact, the Court makes the following:

CONCLUSIONS OF LAW

1. The Fourth Amendment ensures ”[t]he right of the people to be

secure in their persons, houses, papers and effects, against unreasonable searches

and seizures.” U.S. Const. amend. IV.

2. Inv. Schlag searched the Ranch only after obtaining a signed search
warrant. Defendant has not challenged the adequacy of the search warrant.
 3. Defense failed to brief or orally argue its asserted search and seizure
issue. The search of the Ranch was proper based on the search warrant.

Based on the foregoing Conclusions of Law, it is hereby ORDERED:

1. Defendant’s motion to suppress evidence is in all things DENIED.

2. The attached memorandum is incorporated herein.

3. Defendant's motion to dismiss the charges for lack of probable cause

is in all things DENIED.

BY THE COURT:

Eric
Q
smrde‘ l
Scfludgecaaéfijsdrict Court
Dec 28 2020 2:32 PM
 Memorandum
Probable Cause

I. Legal Standard

A finding of probable cause is based upon “the entire record, including reliable

hearsay in whole or in part.” Rule 11.03 of Minnesota Rules of Criminal Procedure.

Probable cause exists:

If . . . the complaint, the police reports, the statements of witnesses

and the representations of the prosecutor, who is an officer of the
court, convince the court that the prosecutor possesses substantial
evidence that will be admissible at trial and that would justify denial
of a motion for a directed verdict of acquittal, then the Court should
deny the motion to dismiss.

State v. Rad, 359 N.W.2d 573, 579 (Minn. 1984).

The standard for granting a directed verdict requires ”the determination of

whether, as a matter of law, the evidence is sufficient to present a fact question for
the jury’s consideration." Paradise v. City of Minneapolis, 297 N .W.2d 152, 155
(1980).1

The purpose of allowing a defendant to challenge probable cause is to

protect a defendant who is unjustly or improperly charged from being compelled

to stand trial. Rad, 359 N.W.2d at 579. Probable cause exists where the facts would

lead a person of ordinary care and prudence to hold an honest and strong

suspicion that the person under consideration is guilty of a crime. State v. Carlson,
267 N.W.2d 170, 173 (Minn. 1978).

1
Even though Paradise was a civil case, it has been relied upon in criminal cases as well. See State v.
Poupard, 471 N.W.2d 686, 690 (Minn. App. 1991); State v. Diedrich, 410 N.W.2d 20, 22 (Minn. App.
1987).
 In addressing a probable cause challenge, the Court must determine

whether, given the facts disclosed by the record, it is fair and reasonable to require
the defendant to stand trial. State v. Florence, 239 N.W.2d 892, 902 (Minn Ct. App.
1976). It is not the Court’s function at the hearing to assess the credibility or weight
of conflicting evidence. State v. Hegstrom, 543 N.W.2d 698, 702 (Minn. Ct. App.

1996). ”The weight of contradicted evidence and credibility of witnesses are jury

questions.” State v. Plummer, 511 N.W.2d 36, 38 (Minn. Ct. App. 1994) (citations
omitted).

Courts must view the evidence and all resulting inferences in favor of the
state. State v. Gayles, 915 N.W.2d 6, 12 (Minn. App. 2018); see State v. Barker, 888

N.W.2d 348, 354 (Minn. App. 2016) (indicating that probable cause may be based
on circumstantial evidence). The District Court is required to deny the motion to
dismiss unless the facts which are necessary to establish an essential element of
the offense charged are ”inherently incredible." 8 Minnesota Practice, Criminal

Law & Procedure § 21.5 (3d ed.) ”Inherently incredible" describes evidence or

testimony which is seemingly impossible under the circumstances.

II. Factual Background

On April 25, 2019, Timothy Deane Pearson was charged by Complaint with
the following three counts: Count 1, exposing domestic animals to disease in

violation of Minn. Stat. §609.599, subd. 1(a) and Counts 2 and 3, both counts of

overwork/mistreat animals-torture in violation of Minn. Stat. §343.21, subd. 1.

The Complaint alleges the crimes occurred on or about May 22, 2016 and
continued through April 22, 2019 and occurred at Mr. Pearson’s property at 17007

County Road 18, Hennrietta Township in Hubbard County, Minnesota

(hereinafter the ”Ranch”).

On August 31, 2018, Hubbard County Sheriff’s Investigator William Schlag,

was dispatched to the Ranch based on a report of animal mistreatment or neglect.

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When he arrived at the Ranch he met with Gregory Swallow, an employee of the
Ranch, and Donna Scott, Mr. Swallow’s girlfriend who lived in a camper on the
Ranch. Inv. Schlag spoke with Ms. Scott and obtained a recorded statement from
Mr. Swallow. Mr. Swallow reported that he had arrived at the Ranch on August

8, 2018 and toured the Ranch the following day with Mr. Pearson. Mr. Swallow

reported he observed many sick cows and believed approximately 83 of Mr.

Pearson’s cattle had hoof rot.

Mr. Swallow reported to Inv. Schlag he observed a bull near Mr. Pearson's
residence that he believed had gotten too big for its muscle mass, that its bones
had been forced through its hooves, and, as a result, it had to walk on its knees or
wrists. He also mentioned a horse on the Ranch that he learned had been injured

approximately four years ago and continued to have the injury but Mr. Pearson
did not provide medication for it.

Mr. Swallow also told Inv. Schlag Mr. Pearson feeds the cattle raw potatoes,

moldy hay, and distillers and mentioned an area on the Ranch referred to as the
”boneyard,” where multiple dead cows are located but are not being disposed of
properly. Mr. Swallow and Ms. Scott provided 27 different photographs of
animals on the Ranch. In his report, Inv. Schlag noted that the pictures showed
some of the animals were dead and rotting, some had hoof problems, and others

had injuries.

At the hearing Investigator Schlag testified the animal that meets the criteria
for Count 1 is the bull on its knees and Sweet Ivy is the animal that meets the

criteria for Count 2. With respect to Count 3, Inv. Schlag stated there was not a

specific animal but rather the conduct underlying that charge was the overall poor
treatment, care, and neglect and suffering of the other animals such as the

approximately 83 cattle with hoof rot.

 On September 14, 2018, Inv. Schlag applied for a search warrant to search
the Ranch. On that same date the Hon. Paul Rasmussen, now retired, issued the

search warrant. Inv. Schlag returned to the Ranch on September 14, 2018 with

Alan Olander, DVM, who provided a report based on his observations of the

animals on the Ranch.

Dr. Olander observed the animals on the Ranch, including a horse named
Sweet Ivy with an old injury over the left metatarsal bone, which Dr. Olander
noted was quite swollen, was from several years ago, and was likely not treated

properly when it first occurred. Defendant’s exhibit 4, a sworn declaration from

Dr. Gilbert Mouser, D.V.M. notes he first observed the injury to Sweet Ivy’s leg

eight years ago and stated it was caused from the leg getting tangled in barbed
wire. Dr. Mouser informed Mr. Pearson the horse could never be ridden but could
be kept as a brood mare. Mr. Pearson testified he used Sweet Ivy for working
cattle and elk hunting prior the injury. Afterward, she was used for breeding and

he testified she was not a pet or companion animal. Mr. Pearson alleged that Mr.

Swallow attempted what he called hydrotherapy on Sweet Ivy’s leg which he

claimed removed the scar tissue and left an open wound.

Dr. Olander noted in his report he observed a bull near the horse pasture
area that was not able to or reluctant to stand on its front feet. The Bull was down

on his ”carpi" or wrists. It was reported to Dr. Olander that the bull had been in

this position 90 percent of the time for a few years. In Dr. Olander’s opinion, the
bull should have been slaughtered or euthanized.

Dr. Olander summed up his opinion being that the cattle on the Ranch do

reasonably well during the summer months aside from the foot rot issues, but
inadequate quantity and poor quality of feed during the winter months caused
unacceptably high death loss. He also noted the breeding schedule was poorly
managed resulting in calves being born during the worst part of the winter
resulting in high losses due to weather and disease. He also noted there does not
appear to be enough hired help to adequately care for the number of cattle present
and for an operation of this size. He further opined that the Ranch should be

utilizing the services of a veterinarian much more frequently. In his opinion, based
on his observations and what was reported to him, the animals on the Ranch were

not being cared for in a humane manner.

At the hearing Mr. Pearson testified that in 2018 he was aware of hoof rot

on the cattle on his Ranch.

Mr. Pearson has moved the Court for an order finding a lack of probable
cause to charge each of the three counts in the Complaint. Specifically, for Counts

2 and 3, he alleges because no specific animal was mentioned in reference to the

charge, the State lacks probable cause.

III. Analysis
A. Count]

Minn. Stat. §609.599, subd. 1(a) provides: ”[a] person who intentionally

exposes a domestic animal to an animal disease contrary to reasonable veterinary

practice, or intentionally puts a domestic animal at risk of quarantine or
destruction by actions contrary t0 reasonable veterinary practice, is guilty of a

gross misdemeanor.” ”Domestic animal” means those species of animals that live
under the husbandry of humans. Minn. Stat. §609.599, subd. 3(1).

Inv. Schlag testified Count 1 refers to the bull kept in its own pen and

walking on its knees on the Ranch. Dr. Olander observed the bull during
execution of the search warrant and noted it should have been slaughtered or
euthanized due to the condition it was in. The bull was not able to or reluctant to
stand on its hooves and had been in such a state for years prior to August and

September of 2018 on the Ranch located in Hubbard County, Minnesota.

 Mr. Pearson’s omnibus brief argues that the affidavit of Dr. Mouser, his

expert, must be credited over that of Dr. Olander who participated in the

investigation of the Ranch. It is not the Court’s function at the hearing to assess
the credibility or weight of conflicting evidence. State v. Hegstrom, 543 N.W.2d

698, 702 (Minn. Ct. App. 1996). ”The weight of contradicted evidence and

credibility of witnesses are jury questions." State v. Plummer, 511 N.W.2d 36, 38
(Minn. Ct. App. 1994) (citations omitted).

The facts disclosed by the record would lead a person of ordinary care and

prudence to hold an honest and strong suspicion that Mr. Pearson is guilty of the
crime charged in Count 1. Given the facts disclosed by the record, it is fair and
reasonable to require the defendant to stand trial on that charge.

B. Count 2

Minn. Stat. §343.21, subd. 1 provides: ”[n]o person shall overdrive,

overload, torture, cruelly beat, neglect, or unjustifiably injure, maim, mutilate, or
kill any animal, or cruelly work any animal when it is unfit for labor, whether it

belongs to that person or to another person.” A person who intentionally violates

subdivision 1 or 7 Where the violation results in substantial bodily harm to a pet

or companion animal may be sentenced to imprisonment for not more than one

year or to payment of a fine of not more than $3,000, or both. §343.21, subd. 9(b).

”Substantial bodily harm” means bodily injury which involves a temporary

but substantial disfigurement, or which causes a temporary but substantial loss or

impairment of the function of any bodily member or organ, or which causes a

fracture of any bodily member to a service animal or a pet or companion animal.
Minn. Stat. §343.20, subd. 8. ”Pet or companion animal" includes any animal
owned, possessed by, cared for, or controlled by a person for the present or future

enjoyment of that person or another as a pet or companion, or any stray pet or

stray companion animal. Minn. Stat. §343.20, subd 6. ”Torture” or “cruelty”

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means every act, omission, or neglect which causes or permits unnecessary or

unjustifiable pain, suffering, or death. Id. at subd. 3.

Mr. Pearson alleges Sweet Ivy was used for breeding and, prior to her

injury, for working cattle and is not a pet or companion animal. ”Minn. Stat.
343.20, subd. 6 does not so narrowly restrict the universe of animals that qualify
as pets or companion animals.” State v. Bell, N0. A14—0137, 2014 WL 5314457, at *6
(Minn. Ct. App. Oct. 20, 2014). Although State v. Bell is unpublished and not
precedential, it provides persuasive authority and the following analysis:

The statute's definition of a pet or companion animal is not

exhaustive and ”includes any animal owned, possessed by, cared
for, or controlled by a person for the present or future enjoyment of
that person or another as a pet or companion, or any stray pet or
stray companion animal.” MinnStat. § 343.20, subd. 6 (emphasis
added); cf. Minn.Stat. § 343.20, subd. 7 (2010) (restricting definition
of ”service animal," which ”means an animal trained to assist a
person with a disability." (Emphasis added». ”[D]istinctions in
[statutory] language in the same context are presumed to be
intentional, and we apply the language consistent with that intent.”
In re Stadsvold, 754 N.W.2d 323, 328—29 (Minn.2008).

This interpretation is buttressed by reference to the Pet and

Companion Animal Welfare Act. MinnStat. §§ 34635—44 (2010).
”The doctrine of in pari materia is a tool of statutory interpretation
that allows two statutes with common purposes and subject matter
to be construed together to determine the meaning of ambiguous
statutory language."6 State v. Lucas, 589 N.W.2d 91, 94 (Minn.1999);
see Minn.Stat. § 645.16 (2012) (providing that ”[w]hen the words of
a law are not explicit, the intention of the legislature may be
ascertained by considering other laws upon the same or similar
subjects”).

The Pet and Companion Animal Welfare Act defines ”[p]et” or

”companion animal" to ”mean [ ] a nonhuman mammal, bird, or
reptile impounded or held for breeding, or possessed by, cared for,
or controlled by a person for the present or future enjoyment of that
person or another." Minn.Stat. § 346.36, subd. 6 (emphasis added).
Both Minn.Stat. § 343.20 (2010), which governs cruelty to animals,
and Minn. Stat § 346.36, which governs the welfare of pets and

ll
 companion animals, share common purposes and subject matter.
Reading these two statutes together, ”[p]et or companion animal,”
as defined by Minn.Stat. § 343.20, subd. 6, unquestionably includes
all of the dogs at Bell's kennel.

Under Bell's interpretation, so long as her subjective ”enjoyment” of

a dog at her kennel amounts to use of the animal as a vessel for
conceiving, birthing, and rearing puppies that would be sold as pets,
the breeding dog would not qualify as a ”pet or companion animal”
under Minn.Stat. § 343.20. We presume that the legislature does not
intend results that are ”absurd, impossible of execution, or
unreasonable.” Minn.Stat. § 645.17(1) (2012). Just as a farm cat that is
kept in a barn to kill mice or a hunting dog that is used to retrieve
game can still be a pet, some of Bell's dogs may have served
incidental roles that imparted some economic benefit. But
these animals continue to qualify
as pet or companion animals under Minn.Stat. § 343.20, subd. 6. In
every objective sense, the dogs and puppies that Bell ”enjoyed” at
her kennel were small-breed, household dogs raised to be and
treated as domesticated pets, and Bell sold many of them as pets.
Each of these dogs, colloquially referred to as ”man's best friend,”
qualifies as a pet or companion animal under the non-exhaustive
definition of Minn.Stat. § 343.20, subd. 6, which is sufficiently
definite such that ”ordinary people can understand What conduct is
prohibited." State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1985)
(quotation omitted).

State v. Bell, No. A14-0137, 2014 WL 5314457, at *6-7 (Minn. Ct. App. Oct. 20, 2014).

Just as the dogs at Ms. Bell's kennel, some of which were used for breeding
purposes, fell within the definition of ”pet or companion animal,” Sweet Ivy falls
within that definition even if her sole role on the Ranch was breeding and working
cattle.

Inv. Shlag testified the animal referred to by Count 2 is the horse, Sweet Ivy,
with the wound on its leg from several years prior. Dr. Olander’s report notes the
wound was likely not treated properly when it occurred and was swollen when

he observed it. Based on the facts disclosed by the Record, Mr. Pearson was the

person responsible for the horse's care and treatment. His omission or neglect to

12
provide proper medical care left the horse with wound that existed on one of its
hind legs for years and was swollen when observed by Dr. Olander during
execution of the search warrant in September of 2018. Sweet Ivy meets the
definition of a ”pet or companion animal." The size and swelling of the wound

suggests the horse may have been in pain. The wound appears to be a substantial
disfigurement to the horse’s leg or caused impaired use. Because the wound was
present for multiple years and the horse lived on Mr. Pearson's ranch, it is likely
Mr. Pearson knew the wound continued to exist and the dates and location

charged in the Complaint are accurate.

Again, on this count of the complaint, Mr. Pearson’s omnibus brief argues
that the affidavit of Dr. Mouser, his expert, must be credited over that of Dr.
Olander who participated in the investigation of the Ranch. It is not the Court’s
function at the hearing to assess the credibility or weight of conflicting evidence.
State v. Hegstrom, 543 N.W.2d 698, 702 (Minn. Ct. App. 1996). ”The weight of
contradicted evidence and credibility of witnesses are jury questions.” State v.

Plummer, 511 N.W.2d 36, 38 (Minn. Ct. App. 1994) (citations omitted). Mr.
Pearson’s attorney also injects his own opinion about extent of the injury to Sweet

Ivy and the qualifications of Dr. Olander, which are interesting, but are neither
persuasive nor admissible.

The facts in the record would lead a person of ordinary care and prudence
to hold an honest and strong suspicion that Mr. Pearson is guilty of the crime.
Given the facts disclosed by the record, it is fair and reasonable to require the
defendant to stand trial on this charge.

C. Count 3

Minn. Stat. §343.21, subd. 1 ”[n]o person shall overdrive, overload, torture,
cruelly beat, neglect, or unjustifiably injure, maim, mutilate, or kill any animal, or
cruelly work any animal when it is unfit for labor, whether it belongs to that person
13
or to another person.” Except as otherwise provided in this subdivision, a person

who fails to comply with any provision of this section is guilty of a misdemeanor.

§343.21, subd. 9(a). ”Animal” means every living creature except members of the
human race. Minn. Stat. §343.20, subd. 2.

Inv. Schlag testified that Count 3 refers in general to the mistreatment of the
animals on the Ranch and specifically to the 83 cows with hoof rot. Based on the
facts presented, including reliable hearsay, the hoof rot of the cows on the Ranch

meets the definition of torture and neglect to the extent that some of the cows were

on their knees or wrists as a result of the hoof rot. Mr. Pearson was aware there

were cattle with hoof rot in 2018. The cows were on the Ranch and were observed

with hoof rot from August 8, 2018 through August 31, 2018.

The facts disclosed by the record would lead a person of ordinary care and

prudence to hold an honest and strong suspicion that Mr. Pearson is guilty of the
crime. Given the facts disclosed by the record, it is fair and reasonable to require

the defendant to stand trial on this charge.

D. Necessity of Expert Testimony

The probable cause determination is based on the facts presented and can
be based on reliable hearsay. Expert testimony is not necessary for a probable

cause determination. ”At the omnibus hearing, the state’s case need only satisfy

the probable cause standard. There is no requirement that it be supported by

expert testimony..." State v. Hegstrom, 543 N.W.2d 698, 701 (Minn. App. 1996).

Mr. Pearson’s motion to dismiss for lack of probable cause is in all things
DENIED.

EPS

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