State of Iowa v. Tamora Morrise ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1150
Filed August 5, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TAMORA MORRISE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
Tamora Morrise appeals the sentence imposed following her conviction of
second-degree theft. SENTENCE VACATED AND REMANDED FOR
RESENTENCING.
Thomas J. O’Flaherty (until withdrawal), Bettendorf, and Kent A. Simmons,
Bettendorf, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., Schumacher, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
2
DOYLE, Presiding Judge.
Tamora Morrise appeals the sentence imposed following her conviction of
second-degree theft. The district court found Morrise guilty of the charge after she
and a friend took three American Bulldog puppies from the home of Donald Caffey,
who breeds, raises, and sells the purebred dogs. The puppies, who were less than
five weeks old and worth between $3000 and $5000 each, were never recovered.
At the sentencing hearing, the court considered the presentence
investigation (PSI) report, which recommended placing Morrise on supervised
probation. Because the report found Morrise’s “correctional needs are capable of
being adequately met while under this agency’s field supervision offices,” it did not
recommend placing Morrise in a residential correctional facility (RCF) at that time.
The prosecutor agreed that a suspended sentence was appropriate but asked the
court to order Morrise to stay at an RCF based on Morrise’s “escalating” criminal
history and the substantial sum the State was requesting for victim restitution. The
prosecutor also cited the circumstances of the offense, stating,
It wasn’t just the taking of the property that was concerning. It was
the continued lack of action for days, if not weeks, after the theft,
where [Morrise] had an opportunity to report the incident, where the
puppies could have been returned at any point, but she neglected to
do so.
She knew that the puppies had been taken, and there was
testimony that there was a strong likelihood that the puppies didn’t
survive being separated from their mother at that age.
Morrise argued for “a deferred and/or street probation.” Ultimately, the district
court agreed with the prosecutor and made placement at the RFC a condition of
Morrise’s probation.
3
Morrise contends the district court improperly relied on uncharged and
unproven conduct in sentencing her. Because the sentence is within the statutory
limits, we review this claim for an abuse of discretion. See State v. Guise, 921
N.W.2d 26, 30 (Iowa 2018). The district court abuses its discretion by exercising
it on clearly untenable or unreasonable grounds or by erroneously applying the
law. See id. Because a sentencing court is not permitted to consider unproven
and unprosecuted charges unless the defendant admits to the charges or the
evidence shows the defendant committed the offenses, doing so is an abuse of
discretion.1 See State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002) (noting that
if the court improperly considered unproven or unprosecuted conduct, remand for
resentencing is required). However, “[t]here is no general prohibition against
considering other criminal activities by a defendant as factors that bear on the
sentence to be imposed.” State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). If a
defendant claims the court relied on unproven conduct, the issue “is simply one of
the sufficiency of the record to establish the matters relied on.” Id.The court cited two concerns in determining Morrise’s sentence. First, the
court noted that Morrise’s criminal history “is not insignificant and has been
continuous, particularly over the last couple of years.” The court then stated,
Also, this case involves a likelihood of extreme animal cruelty in that
these puppies, according to the owner, likely perished because they
were so young when taken from their mother that they would not
have survived.
1 Although the State claims Morrise failed to preserve error, a defendant
challenging a sentence by claiming the court relied on an illegal sentencing
consideration “need not object at sentencing for us to address the issue on appeal
if the issue can be decided without further evidence.” State v. Gordon, 921 N.W.2d
19, 25 (Iowa 2018).
4
[Morrise] had the opportunity at any time after the animals
were taken to contact the owner to ensure the safety of these poor
defenseless animals and failed to do so.
Morrise argues the court relied on unproven conduct or unproven offenses
in sentencing her based on its finding that the offense involved “extreme animal
cruelty” because the puppies “likely perished.” We agree that Morrise was never
convicted of or even charged with animal abuse or neglect,2 nor did she admit to
committing either offense. Morrise also argues the conduct is unproven, claiming
the court misstated the record because nothing in the evidence shows “a strong
likelihood” that the puppies did not survive or “likely perished.” She points to
Caffey’s testimony at trial when asked whether “puppies at that age have any sort
of reaction when they’re separated from their mother.” Caffey testified,
No. Just that they’ll be down because they’ll sense the missing of
the other puppies. But not really, no. No long-term effect, just they
seem kind of bummed out. The ones they took probably were
bummed out because they weren’t with the other three, and the other
three were because they weren’t there with them.
Caffey explained that the puppies “weren’t weaned from their mom yet. They were
just on mush food.” He “[d]idn’t even know if they could eat dry food yet” because
“[t]heir teeth weren’t all the way in.” And Caffey testified that the puppies “hadn’t
had any shots or anything yet,” they would not “get their first shots until six and
2 “A person is guilty of animal abuse if the person intentionally injures, maims,
disfigures, or destroys an animal owned by another person, in any manner,
including intentionally poisoning the animal.” Iowa Code § 717B.2 (2019). A
person is guilty of animal neglect if the person “[f]ails to supply the animal during
confinement with a sufficient quantity of food or water” or “deprives [the animal] of
necessary sustenance . . . by any means which causes unjustified pain, distress,
or suffering.” Id. § 717B.3(1)(a), (c). Proof of serious injury or death is not
required. See id. § 717B.3(3) (distinguishing a serious misdemeanor, which
requires proof of serious injury or death, with a simple misdemeanor, which does
not).
5
eight weeks,” and therefore “they definitely weren’t ready for the public.” He had
never taken the puppies outside of his home because they were at “risk of getting
parvo3 or something from the outside world.” A police officer testified that Caffey
expressed concern about whether the puppies were alive “just because they
weren’t ready to be taken away from their mother.” And after Caffey found the
puppies were gone, he sent Morrise text messages asking her to bring the puppies
back because they were not yet weaned or ready for dog food.
The sentencing court concluded the case involved “a likelihood of extreme
animal cruelty” because the puppies “likely perished,” and it took this into account
in its sentencing decision. But the supposition the puppies died is not tethered to
any facts. Although at trial Caffery expressed his concerns about the welfare of
the puppies and questioned their fate—“Did they live? Do we even know if the
puppies lived?”—he never opined the puppies would have died, or probably died,
or likely died. There is no record evidence that Morrise committed animal abuse
or neglect, or that Morrise even had possession of the puppies after the theft.
There is no record evidence that Morrise had any knowledge of any abuse or
neglect. There is no record evidence that anyone subjected the puppies to abuse
or neglect. Consequently, we conclude the district court relied upon an improper
factor during sentencing. We are thus compelled to vacate Morrise’s sentence and
remand the case to the district court for resentencing before a different judge.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
3 Parvo refers to canine parvovirus, an extremely hardy and highly contagious virus
that can cause death, especially in younger animals.