by Eric Mullens
WALSENBURG — An arrest warrant issued for a part-time Huerfano County resident alleging felony criminal mischief for the cutting down of Honey Locust trees on Main Street last year has been vacated according to the district attorney’s office.
Assistant district attorney Clay McKisson said Tuesday, June 12, that a motion to vacate the arrest warrant issued for Richard McEntee was filed with the court June 6, 2012. “We never technically filed charges,” McKisson said. “It came down to the fact we can’t figure out who owns the trees,” he said.
The motion filed by the district attorney’s office said, “the prosecution is unable to present a prima facie case and has filled a Nolle (Nolle prosequi as a declaration can be made by a prosecutor in a criminal case either before or during trial, resulting in the prosecutor declining to further pursue the case against the defendant). The motion also said, “with no charges being filed against the defendant the prosecution request(s) that the warrant be vacated.”
A felony arrest warrant was prepared in November 2011, following the conclusion of the investigation of criminal mischief investigation by Walsenburg police. Walsenburg Police Chief James Chamberlain said the affidavit and warrant were done once the ownership of the trees had been established.
The Main Street trees were planted over 25 years ago by the Walsenburg Downtown Revitalization Committee, and the chief said, while the trees were planted on a city right of way (the sidewalk), the ownership of the trees was never transferred to the city and thus remained the property of the revitalization group.
Walsenburg Police Lieutenant Kurt Liebchen conducted the investigation which began on October 25, 2011. Liebchen said in his affidavit, “by the time of discovery, two trees had already been cut down and third was in the process.” The original reporting party identified Richard McEntee as the person cutting down the trees. McEntee is a part-time Huerfano County resident and real estate developer.
This week McKisson said if the interested parties want to move forward concerning the situation, they will have to find recourse in the civil, not criminal courts.
The affidavit which supported the request for the original arrest warrant seemed to indicate the trees’ ownership had been established. The affidavit, prepared by Liebchen, said the trees in question were part of a larger order that had been planted in early 1985, after purchase from a legal district known as the Walsenburg Downtown Revitalization Committee and that after purchase, a verbal agreement was reached with the city to maintain those trees which has been ongoing for the prior 26 years and remains in place today.
The affidavit said the representatives of the committee claimed the trees were still theirs and they did not consent to their removal. Liebchen discussed the issue with a city official who said the city had a proprietary interest in the trees and did not consent to their removal by McEntee. “As such your affiant (Liebchen) believes that both entities are co-victims in the case.
The warrant charged criminal mischief $1,000 to $19,999 and is a class four felony.
The value of the trees, cost of replacement and cost of removal of the remnants of the old trees was factored into the charge and an estimated value of $600 per tree was established; which put the total amount of damage at $1,200.
Concerning that dollar amount, the affidavit said, “this is officer opinion only, and not official.”