KEY LARGO - Prosecutors are preparing for a new trial in its felony animal cruelty case against a Key Largo man.
Noah Mitchell, 36, was convicted May 23, 2012, for beating his black labrador, Bubba, during a small party in October 2010. Bubba eventually recovered from his injuries.
Mitchell was sentenced to nine months in the county jail but was allowed to remain free until an appeals court ruled on his case.
The 3rd District Court of Appeal reversed Mitchell's conviction on July 31, citing an error made by a prosecutor who shifted the burden of proof away from the state in closing arguments.
Assistant State Attorney Demetrios Efstratiou, who was not on staff during the first trial, has decided to pursue a new trial.
The Upper Keys felony prosecutor says he plans to use the same witness list from the last trial. A pretrial hearing is set for 1:30 p.m. Nov. 5 at the Plantation Key courthouse.
The last trial came down to whether the dog's injuries were accidental or intentional.
The day of the alleged beating, Mitchell, Gary Pitterman and another friend were drinking after helping Mitchell move into his new house, according to court documents. Pitterman fed Bubba a piece of steak, which Mitchell grabbed from the dog. Bubba then bit Mitchell.
Pitterman testified that Mitchell responded by throwing the dog on the concrete floor, kneeing it in the chest and punching it. Mitchell, however, maintains that he dropped the dog when it bit him and then tripped over it.
Mitchell, who later drove Pitterman home, found deputies at his house when he returned.
Aside from Pitterman, the state called five other witnesses in the two-day trial, including three police officers and two veterinarians who testified the dog had a collapsed lung and several fractured ribs.
The three judge appeals court said the prosecutor erred in the first trial by "implying that the defendant had a burden to establish the state's witnesses were lying."
The court cited the prosecutor's instruction that "[you] would have to take all the evidence that [the veterinarian] gave you, find that she is wrong. You would have to then also take out what Gary Pitterman said and that what he said didn't happen at all, because you can't have both what the defendant said and what Mr. Pitterman said."
The standard for a criminal conviction is not which side is more believable, but that the state proves every essential element of a crime beyond a reasonable doubt, the court wrote.
Mitchell is being represented by the Public Defender's Office, which did not immediately return phone messages about the case.