NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

PATRICIA ANN BUSH, Appellant.

No. 1 CA-CR 17-0087

Appeal from the Superior Court in Maricopa County

No. CR2015-002343-001 DT

The Honorable Warren J. Granville, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Joseph T. Maziarz, Angela Kebric Paton

Co-Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Carlos Daniel Carrion

Counsel for Appellant

FILED 5-17-2018
STATE v. BUSH

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.

M O R S E, Judge:

¶1 Patricia Ann Bush appeals her convictions and sentences for

120 counts of cruelty to animals. She argues the trial court erred in denying 

her motion to dismiss for vindictive prosecution. For the following reasons, 

we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 On October 10, 2014, Bush was cited for 12 misdemeanor 

counts of animal cruelty.2 The State twice continued the pre-trial 

conference in justice court so Bush could obtain counsel. On April 7, 2015, 

Bush was still unrepresented, and the parties requested a bench trial. Ten 

days later, the State, citing "the interests of justice[,]" successfully moved to 

dismiss the Justice Court Case without prejudice.

¶3 On July 13, 2015, the grand jury issued an indictment that 

included the 12 misdemeanor charges from the Justice Court case and 

added 92 misdemeanor and 45 felony counts of animal cruelty. The 

additional charges alleged offense dates of either December 11, 2014, or 

February 3, 2015. All offenses related to diseased cats or cat corpses sheriff's 

deputies found in Bush's residence on the dates alleged.3

 

1 We view the facts in the light most favorable to upholding the

verdicts. See State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing 

State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).

2 For reasons not apparent from the record, the charges were brought

in three separate cases, although the alleged offenses occurred on the same 

date and at the same location. For ease of reference, we refer to the three 

cases collectively as the "Justice Court Case."

3 Thirty-four of the cats captured alive were subsequently euthanized 

because of their poor health and fractious behavior.
STATE v. BUSH

Decision of the Court

3

¶4 Bush subsequently moved to dismiss, arguing the additional 

charges amounted to vindictive prosecution. In support of her motion, 

Bush asserted sheriff's deputies improperly contacted her at home after she 

was represented by counsel, and she claimed the prosecutor erroneously 

informed the court that one of Bush's release conditions while the Justice 

Court Case was pending included a prohibition against keeping cats in her 

home. The court denied Bush's motion.

¶5 At the conclusion of the State's case in chief, the State agreed 

to dismiss two counts, and the trial court granted Bush's motion for

judgment of acquittal relating to 26 counts. The jury found Bush not guilty 

of two counts and guilty of the remaining counts. The court suspended 

imposition of sentence and placed Bush on three years of supervised 

probation. Bush timely appealed. We have jurisdiction pursuant to 

Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶6 Bush argues that the court erred in denying her motion to 

dismiss. She contends that the State vindictively prosecuted her in violation 

of her due process rights when, after she attempted to invoke her rights to 

counsel and a trial, the State dismissed the Justice Court Case and 

subsequently indicted her on additional, harsher charges.

¶7 A defendant can establish prosecutorial vindictiveness in one 

of two ways. First, by showing actual vindictiveness with objective 

evidence that a prosecutor acted to punish the defendant for exercising his 

or her legal rights. State v. Mieg, 225 Ariz. 445, 447, ¶ 11 (App. 2010). 

Second, as applicable here, by relying on "a presumption of vindictiveness 

if the circumstances establish a 'realistic likelihood of vindictiveness.'" Id.

at 448 (quoting Blackledge v. Perry, 417 U.S. 21, 27 (1974)). We consider all 

relevant circumstances in our determination of whether to apply a 

presumption of vindictiveness. Id. at ¶ 15. In doing so, we bear in mind 

that the pretrial decisions of prosecutors are entitled to "especially 

deferential" judicial evaluation. Town of Newton v. Rumery, 480 U.S. 386, 397 

n. 7 (1987); cf. United States v. Goodwin, 457 U.S. 368, 381 (1982) ("[A] change 

in the charging decision made after an initial trial is completed is much 

more likely to be improperly motivated than is a pretrial decision."). If a 

defendant makes a prima facie showing that the decision to charge the 

defendant was more likely than not attributable to prosecutorial 

vindictiveness, then the burden shifts to the State to overcome the 

presumption by presenting objective evidence of facts justifying the 

prosecutor's action. Mieg, 225 Ariz. at 448, ¶ 12. We review a trial court's 
STATE v. BUSH

Decision of the Court

4

decision whether to dismiss a case on vindictive prosecution grounds for 

an abuse of discretion. Id. at 447, ¶ 9.

¶8 The trial court properly denied Bush's motion to dismiss 

because Bush failed to establish that a "realistic likelihood of vindictiveness"

motivated the State's decision to seek an indictment on animal cruelty 

charges beyond those from the Justice Court Case. After the Justice Court 

Case commenced, Bush continued to commit illegal acts of animal cruelty 

by sheltering cats in her unsanitary home. The State's desire to prosecute 

Bush for those acts does not amount to vindictiveness that violated Bush's 

due process rights. See Mieg, 225 Ariz. at 448, ¶ 12 (noting "the acceptable 

'vindictive' desire to punish [a defendant] for any criminal acts" does not 

constitute "vindictiveness" that violates due process (quoting United States 

v. Doran, 882 F.2d 1511, 1518 (10th Cir. 1989))). And, in light of the judicial 

deference afforded a prosecutor's pretrial decision-making, the fact that 

sheriff's deputies visited Bush's home after she was charged in the Justice 

Court Case4 or the prosecutor's misstatement regarding Bush's release 

conditions imposed by the justice court do not, as Bush argues, establish 

vindictiveness. On this record we do not find the trial court abused its 

discretion in denying the motion to dismiss on grounds of prosecutorial 

misconduct.

¶9 The cases Bush relies upon do not compel a different result. 

See Bordenkircher v. Hayes, 434 U.S. 357 (1978) (purported prosecutorial 

vindictiveness in the context of plea bargaining process); United States v. 

Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976) (vindictive prosecution 

apparent when misdemeanor charge dismissed after defendant asserted his 

right to trial and State reindicted with felony charge based on same 

conduct); State v. Tsosie, 171 Ariz. 683 (App. 1992) (subsequently charging a 

felony based on same conduct underlying original misdemeanor charge, 

which was dismissed for a violation of speedy trial rights, held to be 

vindictive prosecution). Here, the record is silent as to any plea 

negotiations during the Justice Court Case, and the State reindicted Bush 

with the original misdemeanor counts in addition to charges stemming 

 

4 The record shows deputies visited Bush's home while the Justice 

Court Case was pending, and before she was represented, to follow up on 

the original investigation and to serve search warrants that led to the 

additional charges. The record also establishes deputies went to Bush's 

residence after the felony indictment issued to investigate ongoing 

complaints by her neighbors of "an extreme smell" emanating from her 

home. These later visits were not related to the charges in this case.
STATE v. BUSH

Decision of the Court

5

from conduct different from the acts underlying the allegations in the 

Justice Court Case.

CONCLUSION

¶10 Bush's convictions and sentences are affirmed.