Opinion
No. 60405-8-I.
December 8, 2008.
Appeal from a judgment of the Superior Court for Skagit County, No. 07-1-00182-3, Susan K. Cook, J., entered July 6, 2007.
Affirmed by unpublished per curiam opinion.
A jury convicted Richard Sheppard of animal cruelty in the first degree. Sheppard contends the trial court erred in admitting improper opinion testimony concerning an ultimate issue for the jury. Because the defense theory at trial was that Richard Sheppard was justified in shooting the dog to protect his birds, the animal control officer's testimony that it was unlawful to shoot a dog for impregnating his dog was not impermissible opinion testimony on an ultimate issue. And even if it was error, it was harmless beyond a reasonable doubt. We affirm.
FACTS
On January 21, 2006, Roy and Ann Lower went to visit Roy's father in Mount Vernon. They brought their two-year-old Australian Shepard, Otty, with them. Roy and Ann went into the house and left Otty outside. A little while later, Roy and Ann heard a rifle shot and saw Otty running toward the house, covered in blood. They drove Otty to an emergency veterinary clinic, where he had surgery and survived. Roy's father called while they were still at the vet and informed Roy that his neighbor, Richard Sheppard, shot Otty. That same day, Roy confronted Sheppard about the shooting.
After talking to Roy on January 23, Animal Control Officer Emily Diaz spoke with Sheppard about the incident. Sheppard told Officer Diaz that he had mistaken Otty for another dog that had impregnated his dog. The State charged Sheppard with animal cruelty in the first degree for shooting Otty.
In his motion in limine, Sheppard asked the court to "admonish all witnesses to not testify to the ultimate issue and only testify to personal observations and personal knowledge." Sheppard specifically requested the court rule that "Animal Control Officer Diaz not be permitted to testify to her opinion of what the law is regarding animal cruelty or when it is lawful to shot [sic] an animal. . . . Such testimony would be testimony on the ultimate issue."
At the 3.5 hearing, Officer Diaz testified that when she initially asked Sheppard about the incident, he said he shot the dog because he thought it had impregnated his dog. Officer Diaz informed Sheppard that was not a legal reason for shooting a dog, but told him "it was his legal right to shoot an animal if it was endangering the safety of him or livestock." Sheppard argued that his statements to Officer Diaz were inadmissible because he was not aware that he was under investigation and Officer Diaz did not inform him of his Miranda rights. The court ruled that Sheppard's statements to Officer Diaz were admissible.
At the beginning of the trial, the court ruled on the motions in limine. The court stated that all of the motions in limine were agreed to except motion number eight, the request to exclude Officer Diaz's testimony of what the law is and when it is lawful to shoot a dog. The court reserved the ruling subject to objections to Officer Diaz's testimony. The prosecutor also informed the court, "As far as the ultimate issue, yeah, I've instructed Ofc. Diaz as to that." The court stated, "Obviously, statements by Mr. Sheppard to Ms. Diaz are admissible."
In his supplemental brief, Sheppard cites State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), to argue the trial court violated his constitutional right to a public trial by conducting a hearing on the motions in limine in chambers. The record does not support Sheppard's argument. While the parties do not dispute that the attorneys discussed the motions in limine with the trial judge in chambers, the record clearly establishes that all rulings were made on the record in open court.
The defense theory of the case at trial was that Sheppard shot the dog in defense of the birds his family breeds and sells. Roy Lower, Ann Lower, and Officer Diaz testified on behalf of the State. Roy Lower said that when he found out Sheppard shot Otty, he confronted him. When Roy asked Sheppard why he shot his dog, Sheppard "said his dog had been impregnated and had a huge litter of dogs and puppies, and he was mad about it, and that's why he shot my dog." Roy also said, "I didn't see his excuse as one that was going to withstand any kind of test at all." Sheppard did not object to this testimony.
Ann Lower also testified about the shooting and the trip to the vet. The vet testified that Otty was shot in the neck and if the wound had been approximately one centimeter higher, Otty would not have survived.
Officer Diaz testified that in investigating the complaint, she first spoke to Roy and then questioned Sheppard. Officer Diaz testified that Sheppard told her that "he had heard a commotion and then grabbed his gun and went outside and thought that it was the dog that impregnated his dog, and shot the dog." Officer Diaz testified,
A. I informed him that that wasn't a legal reason to be shooting the dog.
Q. How did he respond to that?
A. He was surprised. He wanted to know what his rights were as far as dogs being on his property, and I explained to him that if dogs are threatening the safety of livestock or a domestic animal or a human, that he has the right to defend his animals or himself, but for just being on his property or impregnating his dog, that wasn't okay.
Officer Diaz testified that Sheppard then told her "the dog could have been chasing or antagonizing his animals." Sheppard did not object to this testimony. On cross examination, defense counsel asked Officer Diaz, including whether Sheppard stated he heard a commotion, questions about her conversation with Sheppard. On redirect, Sheppard objected to Officer Diaz's statement that Sheppard "did not say anything about chickens until after I explained to him that he could shoot if the — "Defense counsel based the objection on "the motions in limine regarding his testimony."
Sheppard's wife, Heather Sheppard, and Sheppard testified on behalf of the defense. Heather said that the family hobby is to raise and show pigeons and doves, which they keep in pens on their property. The family also owns chickens, ducks, and geese. Heather said that in January 2006, the family had about 300 birds. Heather testified that they had previously had trouble with dogs coming onto their property and jumping on the bird cages. Some of the birds would fly into the cage walls and break their necks and others would abanDON their babies and stop reproducing. Heather also said that the dogs would chase their chickens. Heather testified that after Sheppard shot Otty, some chickens, ducks, and pigeons were missing, and other birds had abanDONed their babies and eggs.
Heather described the family dog, a German Shepard mix that they were hoping to breed, and stated that the family dog did not upset the birds. Heather said that it was upsetting to her when a strange dog impregnated her dog, and the family did not keep the puppies.
Sheppard also testified about the family hobby of raising birds. Sheppard stated that they had previously had problems with dogs coming onto their property, attacking their birds, and digging their dog out of her pen. Sheppard testified that on the day of the shooting, he was sleeping in his recliner and woke up to the sound of agitated birds. He said that when he looked out the window, he saw an animal running under the bird cages, so he got his rifle and went outside. He stated he did not recognize the dog and that he fired a warning shot to scare the dog away from his property. Sheppard also said he did not know he hit the dog until he saw the Lowers drive away.
The jury found Sheppard guilty as charged. The court imposed a sentence of 20 days. Sheppard appeals.
ANALYSIS
Sheppard asserts that the trial court erred by admitting Diaz's and Lower's testimony about whether Sheppard was justified in shooting Otty.
Sheppard specifically contends that the trial court erred in admitting Officer Diaz's testimony that it was not legal to shoot a dog because it impregnated his dog and Roy Lower's testimony that he "didn't see [Sheppard's] excuse as one that was going to withstand any test at all." Sheppard contends the testimony was impermissible opinion testimony of guilt.
"No witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference." State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). But testimony that does not directly comment on the defendant's guilt, is otherwise helpful to the trier of fact, and is based on inferences from the evidence is not improper opinion testimony. City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993). In determining whether statements are impermissible opinion testimony, we consider the circumstances of the case and factors including (1) the type of witness, (2) the nature of the testimony, (3), the nature of the charges, (4) the type of defense, and (5) the other evidence before the jury. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
Because Sheppard failed to object to Roy's testimony at trial and to Officer Diaz's testimony until redirect examination, he failed to preserve the issue for review. Under RAP 2.5(a)(3), a party may raise an error for the first time in an appellate court only if it is a "manifest error affecting a constitutional right." Our supreme court recently held that manifest error is to be interpreted narrowly in this context as "an explicit or almost explicit witness statement on an ultimate issue of fact." State v. Kirkman, 159 Wn.2d 918, 936, 938, 155 P.3d 125 (2007).
At trial, Sheppard argued that under RCW 16.08.020, he was justified in shooting the dog because it was injuring his birds. The court instructed the jury, "It shall be lawful for any person who sees a dog chasing, biting, injuring or killing any domestic animal or fowl belonging to such person on any real property owned or leased by, or under the control of such person to kill such dog or dogs."
RCW 16.08.020 provides in pertinent part, "It shall be lawful for any person who shall see any dog . . . chasing, biting, injuring or killing any . . . domestic animal, including poultry, belonging to such person, on any real property owned or leased by, or under the control of, such person, or on any public highway, to kill such dog. . . ."
Officer Diaz testified that she told Sheppard that it was not legal to shoot a dog because it impregnated his dog. Even though this testimony states a legal conclusion, it was not a comment on Sheppard's guilt because his theory at trial was that he was justified in shooting the dog because it was attacking his birds, not because he thought it impregnated his dog. Sheppard also asserts that the court erred in admitting Officer Diaz's statement that "a dog standing near [the birds] didn't necessarily mean that they were threatened." Although this testimony is speculative, it is not a comment on Sheppard's guilt. Officer Diaz's testimony that Sheppard had the right to defend his animals or himself if a dog threatened the safety of his livestock actually supports Sheppard's argument. In addition, Roy's testimony that Roy did not think Sheppard had any excuse for shooting his dog is not an opinion of guilt.
The cases Sheppard relies on to argue that Officer Diaz and Roy gave impermissible opinion testimony are distinguishable. State v. Farr-Lenzini, 93 Wn. App. 453, 465, 970 P.2d 313 (1999) (it was error to admit the trooper's testimony describing the defendant's acts and then interpreting them); State v. Haga, 8 Wn. App. 481, 490, 492, 507 P.2d 159 (1973) (it was error to admit the ambulance driver's testimony that the defendant was "very calm and cool" about his wife's death because it inferred his opinion that the defendant was guilty); State v. Carlin, 40 Wn. App. 698, 703, 700 P.2d 323 (1985) (even if the officer's testimony that the dog tracked the defendant by following a "fresh guilt scent" was impermissible opinion testimony, it was harmless error); State v. Sargent, 40 Wn. App. 340, 350, 698 P.2d 598 (1985) (it was error to admit the detective's testimony that the defendant's response to his wife's death was "contrived"); State v. Sanders, 66 Wn. App. 380, 388, 832 P.2d 1326 (an officer's testimony that the absence of drug user paraphernalia indicated that the house was not used for that purpose was an inference based solely on the physical evidence and his experience).
The cases Sheppard cites from other jurisdictions to argue that he was justified in shooting a dog that impregnated his dog are irrelevant because this was not Sheppard's theory of the case at trial — Sheppard maintained that the reason he shot the dog was that it was attacking his birds. Matthews v. Langhofer, 110 Kan. 36, 202 P. 634 (1921); Bueckner v. Hamel, 886 S.W.2d 368 (Tex.App.-Hous. 1994); Baldwin v. Richardson, 87 S.W. 746 (1905); Kopplin v. Quade, 130 N.W. 511 (1911).
Finally, even if the court's decision to admit the testimony was in error, we conclude that it was harmless. A trial court's decision to admit evidence is subject to harmless error analysis. See State v. Guloy, 104 Wn.2d 412, 432, 705 P.2d 1182 (1985) ("the admission of inadmissible evidence is not among the constitutional errors which the court must always find to be prejudicial"). A constitutional error is harmless if we are convinced beyond a reasonable doubt that a reasonable jury would have reached the same result absent the error. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).
The testimony that Sheppard said that he shot the dog because he thought it impregnated his dog was not offered to show Sheppard's guilt, it was admitted to show that Sheppard was taking an inconsistent position at trial and to undermine his credibility. Sheppard's position at trial was that he was justified in shooting the dog because it was attacking his birds, and the jury was instructed on Sheppard's justification. Any inference of guilt from the testimony was harmless and we conclude a reasonable jury would have reached the same result absent the error, if any.
We affirm.