dissents.
I respectfully dissent. Defendant timely moved for judgment of acquittal and objected to the verdict directing instruction which required a finding that defendant tortured and mutilated the dog because the state failed to offer evidence to support a finding of mutilation as that term was used in the 1983 statute. The trial court overruled the motion for acquittal and submitted the instruction. It erroneously relied upon a definition of mutilation in a dictionary that was not published until years after the statute in question was enacted. See, Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993). The state has relied on two dictionary definitions but they were also published long after the statute in question was enacted. The majority opinion correctly refers to a 1983 Webster’s Dictionary, which “implies the cutting off or removal of an essential part ... thereby impairing its completeness, beauty or function.” However, the definition includes reference to “great injury” or “serious bodily injury”; “maim implies the loss or injury of a bodily member through violence ... mutilate implies the cutting off or removal of an essential part of a person or thing, thereby impairing its completeness, beauty, or function.” The state’s evidence was Cody recovered after several weeks of treatment, thus, no mutilation.
The Missouri Legislature in 1996 amended Section 578.012 RSMo 1994 so that an animal abuser may now be convicted of a felony offense by torturing, or mutilating, or both. The legislature has closed the avenue of escape. Defendant did torture. What he did to Cody would quite properly now be a felony. However, if the majority opinion correctly analyzes the legislative intent of the 1983 statute, then there was no need for the amendment.
There remains a question of result. Does the evidence support a conviction of misdemeanor abuse? Yes. Is a retrial the solution? No. ‘Where a conviction of a greater offense has been overturned for insufficiency of the evidence, the reviewing court may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements.” State v. Dooley, 919 S.W.2d 539, 542 (Mo.App.E.D.1995). See State v. O’Brien, 857 S.W.2d 212 (Mo. banc 1993)[dicta]; State v. Nguyen, 880 S.W.2d 627 (Mo.App.E.D.1994). All elements of the class A misdemeanor of animal abuse were established by the evidence and were necessarily found by the jury in arriving at its verdict.
We should hold the evidence failed to support submission of felony abuse, as defined before a 1996 amendment, but affirm conviction for the class A misdemeanor of animal abuse. We should remand only for re-sentencing. We note: (1) the entire jail sentence has been served; (2) a fine may not exceed the amount authorized by law, for, a misdemeanor, an amount which will, therefore, be less than the $3,000. State v. Dooley, 919 S.W.2d at 542-43.