Opinion
No. 54197-1-II C/w 55147-1-II
06-01-2022
STATE of Washington, Respondent, v. Denver Lee SHOOP, Appellant.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant. Jeremy Aaron Morris, Glisson & Morris, 623 Dwight St., Port Orchard, WA, 98366-4619, for Respondent.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Jeremy Aaron Morris, Glisson & Morris, 623 Dwight St., Port Orchard, WA, 98366-4619, for Respondent.
PUBLISHED IN PART OPINION
Price, J.
¶ 1 Denver Shoop appeals his convictions for eight counts of first degree animal cruelty and the related restitution order. He argues: (1) RCW 16.52.205(2)(a) is an alternative means statute, and the State neither presented sufficient evidence to support each of the alternative means nor instructed the jury as to unanimity with regard to each of the alternative means, (2) his right to a unanimous jury was violated because the jury was not given a Petrich instruction, (3) the State committed misconduct in telling the jury it did not need to be unanimous regarding the cause of starvation, (4) the trial court's denial of funds for an expert evaluation denied him effective assistance of counsel, and (5) the trial court abused its discretion in its order for restitution. Shoop also raises additional issues in a statement of additional grounds.
State v. Petrich , 101 Wash.2d 566, 683 P.2d 173 (1984), abrogated on other grounds by State v. Kitchen , 110 Wash.2d 403, 756 P.2d 105 (1988), abrogated on other grounds by Pers. Restraint of Stockwell , 179 Wash.2d 588, 316 P.3d 1007 (2014).
¶ 2 We hold that RCW 16.52.205(2)(a) is not an alternative means statute and that a Petrich instruction was not required in this case. In the unpublished portion to this opinion, we determine that all of Shoop's remaining arguments fail. Accordingly, we affirm Shoop's convictions and the trial court's restitution order.
FACTS
I. BACKGROUND
¶ 3 Shoop owned bison that he kept in a field on his property along with other animals. An animal control officer received a report of animal cruelty related to the bison and drove to Shoop's property. The officer observed eight bison that appeared emaciated and weak. The officer subsequently obtained a warrant and seized seven out of the eight bison but was unable to take the eighth due to its size. One of the bison was pregnant when it was seized, and it later gave birth to a calf.
¶ 4 Shoop was charged with eight counts of first degree animal cruelty, seven for the bison that were seized and one for the bison that the State was unable to seize. His first trial resulted in a mistrial due to a hung jury.
II. SECOND TRIAL
A. JURY SELECTION AND OPENING STATEMENTS
¶ 5 Prior to jury selection for the second trial, the trial court gave preliminary instructions to the entire pool of potential jurors. The trial court stated that Shoop was charged with eight counts of first degree animal cruelty and the counts "pertain[ed] to different animals." 6 Transcript of Proceedings (RP) at 1016. The trial court subsequently repeated that there were eight counts and each pertained to a separate bison.
¶ 6 Once the jury was selected, the State presented its opening statement. When discussing the charges, the State said that Shoop was being charged with eight counts of first degree animal cruelty, "one for each bison." 7 RP at 1224.
B. TESTIMONY
¶ 7 At trial, the State presented a significant amount of testimony showing that the condition of the bison was due to a parasitic infection from untreated worms and inadequate food. The State also presented testimony indicating that Shoop had intentionally deprived the bison of water for extended periods of time.
¶ 8 An expert for the State said that at the time the bison were seized, on a scale of one to five (with five being ideal), three of the bison received a score of one (imminent danger of sickness or death), four received a score of two (moderately thin), and one received a score of two to three.
¶ 9 Shoop offered testimony showing that he did not deprive the animals of food and water. Witnesses stated that Shoop had provided dewormer medication to the bison and the animals were in good condition prior to being seized. Shoop also presented testimony that the condition of the bison could have been caused by ingesting toxic plants, by weather conditions, or by liver flukes which are difficult to diagnose.
C. JURY INSTRUCTIONS AND CLOSING ARGUMENT
¶ 10 Following the close of the evidence, the case was submitted to the jury as eight separate counts of second degree animal cruelty. The jury was instructed, "A separate crime is charged in each count. You must decide each count separately. Your verdict in one count should not control your verdict on any other count." Clerk's Papers (CP) at 154. Additionally, the jury instructions for each of the counts stated that the jury must find the following elements beyond a reasonable doubt:
(1) That on or about between October 1, 2017 and April 23, 2018, the defendant,
(2) on an occasion separate and distinct from the act alleged [in all other counts],
(3) with criminal negligence, starved, dehydrated, or suffocated an animal and as a result
(4) caused substantial and unjustifiable physical pain that extended for a period sufficient to cause considerable suffering; and
(5) That this act occurred in the State of Washington, County of Jefferson.
CP at 163-70. Although the jury was instructed generally regarding unanimity, they were not given a Petrich instruction.
A Petrich instruction instructs the jury that it must be unanimous as to the distinct criminal act. 101 Wash.2d at 569-70, 683 P.2d 173.
¶ 11 In its closing argument, the State acknowledged that there was evidence that starvation occurred because of both the lack of food and a parasitic infection but told the jury that
you don't have to agree on exactly the method of starvation. So that's not what's meant by unanimity. You just have to agree that the elements of the State—of the charge have been proved beyond a reasonable doubt.
9 RP at 1659. The State also said that the charges were based on a six month time range because starvation takes time. Absent from the State's closing was a detailed discussion of how the animal cruelty charges specifically applied to the evidence that had been presented. Also, unlike its opening statement, the State did not mention whether it intended that each charge related to a separate bison or whether multiple charges applied to a single bison.
¶ 12 The jury found Shoop guilty of all eight counts of first degree animal cruelty.
¶ 13 Following the jury's verdict, Shoop filed a motion for arrest of judgment arguing that starvation, dehydration, and suffocation were alternative means of committing animal cruelty and because the trial court had not instructed the jury to find a specific means by which Shoop had committed animal cruelty, the State was required to introduce substantial evidence on each of the alternatives. And since the State focused mostly on starvation, there was insufficient evidence that the bison were dehydrated and suffocated. The trial court denied Shoop's motion.
¶ 14 Shoop appeals his convictions.
ANALYSIS
I. RCW 16.52.205(2)( A ) AND ALTERNATIVE MEANS
¶ 15 Shoop argues that RCW 16.52.205(2)(a) is an alternative means statute that requires either a unanimity instruction regarding the alternatives or a showing that the State presented sufficient evidence to support each of the alternatives. We disagree and hold that RCW 16.52.205(2)(a) is not an alternative means statute.
A. STATUTORY LANGUAGE
¶ 16 Washington's animal cruelty statute includes several different ways the statute can be violated. Relevant here, RCW 16.52.205(2)(a) provides:
A person is guilty of animal cruelty in the first degree when ... he or she, with criminal negligence, starves, dehydrates, or suffocates an animal, or exposes an animal to excessive heat or cold and as a result causes: (i) Substantial and unjustifiable physical pain that extends for a period sufficient to cause considerable suffering; or (ii) death.
The two other means of committing first degree animal cruelty include the prohibition on torturing animals in subsection 1 and the prohibition of sexual contact with animals in subsection 3. RCW 16.52.205(1), (3).
¶ 17 Here, the jury instructions only addressed subsection 2 and provided that animal cruelty occurred where an individual starved, dehydrated, or suffocated an animal. Shoop argues that these three means—starvation, dehydration, or suffocation—are three alternative means of committing animal cruelty. Since these means are different alternatives, and the jury was not instructed as to unanimity with regard to the alternative means, Shoop asserts that all three alternatives needed to be supported by sufficient evidence.
B. ALTERNATIVE MEANS DOCTRINE
¶ 18 A criminal statute that provides for multiple ways to prove that a defendant committed the crime is characterized as an alternative means crime. State v. Barboza-Cortes , 194 Wash.2d 639, 643, 451 P.3d 707 (2019). The alternative means doctrine implicates the criminal defendant's right to a unanimous jury verdict. State v. Ortega-Martinez , 124 Wash.2d 702, 707, 881 P.2d 231 (1994) ; Barboza-Cortes , 194 Wash.2d at 643, 451 P.3d 707. Alternative means crimes require an expression of jury unanimity as to which means the defendant used to commit the crime. Barboza-Cortes , 194 Wash.2d at 643, 451 P.3d 707. However, " ‘an expression of jury unanimity is not required provided each alternative means presented to the jury is supported by sufficient evidence.’ " Id. (quoting State v. Sandholm , 184 Wash.2d 726, 732, 364 P.3d 87 (2015) ).
¶ 19 The alternative means doctrine does not apply where a statute includes alternatives characterized as "a ‘means within a means.’ " State v. Jallow , 16 Wash. App. 2d 625, 638, 482 P.3d 959 (2021) (quoting State v. Smith , 159 Wash.2d 778, 783, 154 P.3d 873 (2007) ). "The alternative means analysis focuses on whether the statute describes the crime in terms of separate, distinct acts (alternative means) or in terms of closely related acts that are aspects of one type of conduct (not alternative means)." State v. Roy , 12 Wash. App. 2d 968, 974, 466 P.3d 1142 (2020).
The more varied the criminal conduct, the more likely the statute describes alternative means. But when the statute describes minor nuances inhering in the same act, the more likely the various "alternatives" are merely facets of the same criminal conduct.
Sandholm , 184 Wash.2d at 734, 364 P.3d 87.
¶ 20 The use of the disjunctive "or" and the structuring of a statute into separate subsections are not dispositive as to the question of whether a statute creates alternative means. Id. The analysis instead should focus on whether the supposed alternatives describe "distinct acts that amount to the same crime." Id. at 734, 364 P.3d 87 (quoting State v. Peterson , 168 Wash.2d 763, 770, 230 P.3d 588 (2010) ). If so, then the alternative means doctrine will apply.
¶ 21 Whether a statute provides alternative means is a question of judicial interpretation that is reviewed de novo. Barboza-Cortes , 194 Wash.2d at 643, 451 P.3d 707.
C. APPLICATION
¶ 22 Shoop argues that RCW 16.52.205(2)(a) provides alternative means of committing first degree animal cruelty and that the State did not present sufficient evidence to prove each means, depriving him of his right to a unanimous jury. We hold that RCW 16.52.205(2)(a) is not an alternative means statute.
¶ 23 Division One of this court recently held in Jallow that RCW 16.52.205(2)(a) is not an alternative means crime, rejecting its prior decision that held the opposite. 16 Wash. App. 2d at 640, 482 P.3d 959 (court rejects holding in State v. Peterson , 174 Wash. App. 828, 301 P.3d 1060 (2013) ). The Jallow court determined that the animal cruelty statute as a whole is an alternative means crime because there are three subsections that set out three alternative means for committing the crime. Id. at 639-40, 482 P.3d 959. But it decided that each subsection of the statute, including subsection 2, contained "means within a means" for committing the crime. Id. at 640, 482 P.3d 959. These means within a means did not render the subsections themselves alternative means crimes:
"Each of these subsections begins with the words, ‘A person is guilty of animal cruelty in the first degree when ....’ In each subsection, thereafter follows the words describing the means set forth therein.
The error made in Peterson is that the court confused certain subalternatives (‘means within a means’) for actual alternative means. The words set forth in subsection 2 (‘starves, dehydrates, or suffocates’) are ‘means within a means.’ The jury unanimity guarantee does not attach to these subalternatives.
Subsection 1, viewed broadly, criminalizes torturing animals. Subsection 2, viewed broadly, criminalizes withholding life's necessities (air, food, water) from animals. Subsection 3 criminalizes sexual perversion with animals. These are the alternative means."
Id. at 639-40, 482 P.3d 959 (quoting State v. St. Clare , 198 Wash. App. 371, 385-86, 393 P.3d 836 (2017) (Dwyer, J., concurring)).
¶ 24 Thus, Jallow determined that RCW 16.52.205(2)(a) gives an alternative means for committing first degree animal cruelty by depriving an animal of the necessities of life . Id. at 640, 482 P.3d 959. "The ‘means within the means’ of depriving the animal of necessities of life are starving, dehydrating, suffocating, or exposing the animal to excessive heat or cold." Id. at 640, 482 P.3d 959.
¶ 25 We agree with Jallow that RCW 16.52.205(2)(a) makes it a crime to deprive an animal of basic life necessities through criminal negligence. The provision criminalizes neglect of animals that leads to this deprivation, whether that be through failing to provide food or water to the animal, by suffocation, or exposure to excessive temperatures. Each of the situations covered by subsection 2 are "closely related acts that are aspects of one type of conduct" because they generally relate to an individual's failure to take action to ensure an animal is provided with basic life necessities.
Roy , 12 Wash. App. 2d at 974, 466 P.3d 1142.
¶ 26 Shoop maintains that subsection 2 provides alternative means because one act of the subsection does not necessitate another. For example, an individual could deprive an animal of water while still providing it with shelter and food. However, the alternative means analysis requires a close relationship, not complete overlap. And, again, all of the means in subsection 2 are closely related to basic life necessities.
¶ 27 We hold that because the provision involves closely related means within the means, RCW 16.52.205(2)(a) is not an alternative means crime. Consequently, the fact that it was potentially unclear whether the jury unanimously found only one of the alternative means did not deprive Shoop of his right to a unanimous jury.
II. PETRICH INSTRUCTION
¶ 28 Shoop next argues that the failure to give a Petrich instruction also deprived him of his right to a unanimous jury. We disagree.
A. LEGAL PRINCIPLES
¶ 29 Criminal defendants have a right to a unanimous jury verdict found in the Sixth Amendment to the United States Constitution and article 1, section 22 of the Washington Constitution. Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 1397, 206 L. Ed. 2d 583 (2020) ; State v. Armstrong , 188 Wash.2d 333, 340, 394 P.3d 373 (2017). Criminal defendants may be convicted only if a jury unanimously determines the defendant committed the criminal act with which they were charged. Petrich , 101 Wash.2d at 569, 683 P.2d 173. "When the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act." Kitchen , 110 Wash.2d at 409, 756 P.2d 105. The purpose of a Petrich instruction is to prevent confusion because where such an instruction is necessary, but not given, "some jurors may have relied on one act or incident and some another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction." Id. at 411, 756 P.2d 105.
¶ 30 In State v. Carson , our Supreme Court held that a Petrich instruction is required where the State fails to " ‘elect the act upon which it will reply for conviction.’ " 184 Wash.2d 207, 227, 357 P.3d 1064 (2015) (quoting Petrich , 101 Wash.2d at 572, 683 P.2d 173 ). "For an election to be effective, ‘either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.’ " Id. (quoting Kitchen , 110 Wash.2d at 409, 756 P.2d 105 ). In Carson , the court found that a Petrich instruction was not required because the State made an election in its closing argument by specifying the three different acts it was relying on and saying that those were the only incidents the jury should, in turn, rely on. Carson , 184 Wash.2d at 228-29, 357 P.3d 1064.
¶ 31 Moreover, neither an election nor Petrich instruction is required where the State has filed a single charge based on "a continuing course of conduct." Petrich , 101 Wash.2d at 571, 683 P.2d 173 ; State v. Gooden , 51 Wash. App. 615, 618, 754 P.2d 1000 (1988). "[A] continuing course of conduct may form the basis of one charge in an information." Petrich , 101 Wash.2d at 571, 683 P.2d 173. A continuing course of conduct occurs where the State presents evidence of "one continuing offense" as opposed to "several distinct acts." Id. at 571, 683 P.2d 173 (internal quotation marks omitted) (citing U.S. v. Berardi , 675 F.2d 894, 897-900 (7th Cir. 1982) ). Evidence that the conduct occurred at different times and places tends to show distinct acts and not a continuing course of conduct. State v. Handran , 113 Wash.2d 11, 17, 775 P.2d 453 (1989). However, evidence of a series of actions that are intended to secure the same outcome tends to support a finding of a continuing course of conduct. State v. Fiallo-Lopez , 78 Wash. App. 717, 724, 899 P.2d 1294 (1995). Determination of whether criminal conduct is "one continuing act" requires evaluation of the facts in a commonsense manner. Handran , 113 Wash.2d at 17, 775 P.2d 453.
¶ 32 We review constitutional issues de novo. State v. Jorgenson , 179 Wash.2d 145, 150, 312 P.3d 960 (2013).
B. APPLICATION
¶ 33 Shoop maintains his right to a unanimous jury was violated because the State presented evidence of multiple acts to support each of the charged offenses but the jury did not receive a Petrich instruction. He asserts that although the jury instructions listed eight separate counts, neither the jury instructions nor the State explained precisely to what those eight counts pertained. Shoop argues that there is no way of knowing what effect the failure to include a unanimity instruction had on juror deliberations. He contends that one juror may have found multiple counts over a six month period for a single bison, while another may have found that each count applied to a separate bison. We disagree.
Shoop did not object to the jury instructions at trial. However, a claim of error based on jury unanimity is of constitutional magnitude and may be raised for the first time on appeal. State v. Crane , 116 Wash.2d 315, 325, 804 P.2d 10 (1991), abrogated on other grounds by In re Pers. Restraint of Andress , 147 Wash.2d 602, 56 P.3d 981 (2002).
¶ 34 Here, like Carson , the jury was clearly informed about the State's election of the acts upon which it was relying for conviction. At the outset of jury selection, the trial court twice explained to the juror pool that the eight separate counts pertained to the eight bison. Later, during its opening statement to the jury, the State reiterated that it charged Shoop with eight counts, "one for each bison." 6 RP at 1016-17, 7 RP at 1224.
¶ 35 It is true that, unlike Carson , these statements were made at the outset of the case, not during closing argument. At oral argument before this court, Shoop contended that this is a critical distinction that makes the State's election here ineffective. We disagree. That the election occurred in the State's opening statement, especially when coupled with the trial court's comments during jury selection, has no effect on its clarity to the jury and, therefore, its effectiveness.
Additionally, because the number of charges was very specific, Shoop overstates the possibility of confusion to a rational juror. For a juror to drift away during deliberations from the direct statements made at the outset of the trial by both the trial court and the State and assume that the charges could be related to multiple acts on a single bison, the juror would have to view it as a mere coincidence that the case involved eight charges and eight bison. Such a specific number of charges exactly matching the specific number of bison makes this speculation highly unlikely.
¶ 36 Shoop also argues that as a result of the State's failure to give a proper unanimity instruction, it is unclear which particular act of animal cruelty the State was relying on as the basis for each of its charges, especially since the charging period was over six months in length. Shoop argues this failure to allege a specific act on a specific occasion for each bison for its charges potentially led to juror confusion depriving him of his right to a unanimous jury.
¶ 37 Although an election (or a Petrich instruction) was necessary to clarify that the State was charging eight counts, one for each bison, the State was not required to be as specific in time and place as Shoop argues regarding each charge. Acts leading to starvation or dehydration are best characterized as a continuing course of conduct because they are "series of actions intended to secure the same objective ... rather than several distinct acts." Fiallo-Lopez , 78 Wash. App. at 724, 899 P.2d 1294. Starvation, for example, would rarely be a consequence of one distinct action; rather, it would be a series of actions (or inactions) that culminates in the final result of an unhealthy animal. A commonsense evaluation of the facts reveals that these charges were based on a continuing course of conduct.
¶ 38 The State presented evidence of starvation and dehydration of the bison over time, establishing one continuing offense rather than several distinct acts. Each charge pertained to one continuous course of conduct, per bison, over a time period of six months. When a Petrich instruction is required, it provides necessary clarity when one charge could potentially apply to multiple acts or when multiple acts could potentially apply to one charge. See Kitchen , 110 Wash.2d at 411, 756 P.2d 105. Neither is present here.
¶ 39 The rationale for requiring an election or a Petrich instruction is minimizing confusion about the jury's verdict and ensuring its deliberations are consistent with requirement for unanimity. Here, the repetition with which the jury was told that there were eight counts, one for each bison, ensured there was no confusion with this verdict. Moreover, because the crimes were charged as a continuing course of conduct, a Petrich instruction requiring precision as to a specific act of animal cruelty was not required. Therefore, we hold that there was no error in the failure to give a Petrich instruction in this case.
CONCLUSION
¶ 40 We hold that RCW 16.52.205(2)(a) is not an alternative means statute but rather proscribes means within the means. We further hold that there was no error in the failure to give a Petrich instruction. Accordingly, we affirm Shoop's conviction.
¶ 41 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Worswick, J.
Lee, J.