State Of Washington, V. Brittney L. Schumate ( 2023 )

Filed
Washington State
Court of Appeals
Division Two
December 5, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 57025-4-II
Respondent,
v.
BRITTNEY L. SCHUMATE, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Brittney Shumate appeals her conviction for 10 counts of animal cruelty in
the first degree. She asserts the warrantless entry of her apartment should result in suppression of
all evidence obtained. She also argues that there is insufficient evidence supporting her conviction
of animal cruelty under RCW 16.52.205. Further, she argues that the superior court’s failure to
enter written findings of fact and conclusions of law for its trial decision requires remand. Lastly,
Shumate argues the superior court’s order requiring her to pay community custody supervision
fees is unauthorized and must be stricken from the judgment and sentence.
We conclude that the search was lawful. Because the State concedes that the superior court
failed to enter written findings after trial in accordance with CrR 6.1(d), and the record as
comprised does not allow appellate review, we accept the State’s concession and remand for entry
of written findings and conclusions. Accordingly, we do not reach the merits of Shumate’s
sufficiency argument. Finally, we accept the State’s concession and additionally remand for the
trial court to strike the imposition of community custody supervision fees and to reconsider the
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deoxyribonucleic acid (DNA) collection and victim penalty assessment legal financial obligations
(LFOs).
FACTS
I. BACKGROUND
Brittney Shumate signed a lease with a termination date of February 29, 2020, for an
apartment in Longview, where she lived with her boyfriend and children. When signing the lease,
Shumate did not identify any animals living in her apartment.
Come fall 2019, apartment general manager Brandi Bate commenced eviction due to
nonpayment of rent and lack of communication. Despite Bate reporting having seen Shumate at
the apartment in December 2019, she stated she received constant complaints from other tenants
regarding barking coming from Shumate’s apartment. But there was no answer when she reached
out to Shumate to tell her of the complaints in December.
In January 2020, Bate filed a complaint for restitution of property and damages in superior
court. In the complaint, Bate noted Shumate received both a 14-day notice to pay or vacate in
November 2019 and a 20-day notice to terminate tenancy and vacate in December 2019 via posting
at the residence and through first-class mail.1
Bate attempted to reach Shumate but was unsuccessful. On January 24, 2020, still unable
to reach Shumate, Bate called the Cowlitz County Humane Society Animal Control, unlocked the
door, and let them enter Shumate’s apartment. A total of 10 deceased animals were removed from
the apartment. In the process of removing the deceased animals, animal control took photos of the
animals and conditions within the apartment.
1
Because Bate was unable to have Shumate served with the complaint, and Shumate was
apparently not present at the apartment, a show cause hearing on the unlawful detainer action was
not held. The matter was later dismissed in June 2020.
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II. PROCEDURAL HISTORY
On December 8, 2021, the State charged Shumate with 10 counts of animal cruelty in the
first degree. Before the scheduled April 27, 2022 trial, Shumate filed a motion to suppress all the
evidence discovered by the humane society. The superior court denied her motion finding she had
abandoned her apartment and, therefore, no longer had a reasonable expectation of privacy and no
ability to prevent Bate from consenting to the search.
The trial court entered written findings and conclusions supporting its decision denying the
motion to suppress. First, the court found Bate had attempted to contact Shumate since January
of 2020 in order to serve her with eviction documents and inform her of animal noise complaints
but was unsuccessful. It further found that after animal noises suddenly stopped, Bate again tried
to contact Shumate and knocked on the apartment door without avail. Afterwards, Bate contacted
the Cowlitz Public Utilities District who informed her that services had been terminated since
December 2019. Consequently, Bate along with one of her employees, opened the door to the
apartment and saw unsanitary conditions, including animal feces, urine, and a deceased cat in the
doorway. Next, Bates called animal control and allowed them entry into the apartment where they
found trash and a number of decaying and deceased animals. Animal control removed the animals
and Bate had her employees clean and repair the apartment. The superior court concluded that
Shumate’s lack of response to Bate’s multiple attempts at contact and the inability of a process
server to contact her showed Shumate had abandoned the apartment prior to January 11, 2022. It
concluded that Bate’s entry on January 24 was lawful. Shumate waived her right to a jury trial
and the parties proceeded to a bench trial.
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III. TRIAL
Shumate’s bench trial for all 10 counts of animal cruelty in the first degree was held on
April 27, 2022. The court heard testimony from Bate, officers Nathan Stanyer and Tina Melton
of the humane society animal control, and Shumate.
A. Bate’s Testimony
At trial, Bate recounted the events of January 24, 2020. Bate noted that on the day of the
search, the animal noises coming from Shumate’s apartment had suddenly stopped, so she tried to
contact Shumate. However, she had no luck. Bate then called the public utilities department to
check if there was electricity and heat but was told services had been shut off in December 2019.
After learning the power was off, coupled with a terrible smell emitting from the apartment, Bate
decided to conduct a welfare check. But before entering the apartment, she called the Longview
Police, noting there might be animals inside, and they advised her to call the humane society animal
control. She did.
While waiting for the humane society to arrive, Bate and one of her employees opened the
apartment door. Bate could not enter the apartment because of how bad it smelled. But upon
opening the door, they saw a deceased cat lying in the entryway and “[a] whole lot of feces,”
“toys,” “clothes,” and other “stuff piled everywhere.” Rep. of Proc. (RP) at 57. Once animal
control arrived, she permitted them to enter the apartment while she went to her office to wait.
After animal control departed with nine deceased animals, Bate sent some of her employees
into the apartment to clean. They found a tenth deceased animal.
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B. Animal Control Officers
1. Nathan Stanyer
Next, the court heard testimony from humane society animal control officer Nathan
Stanyer. Stanyer stated that upon first arriving, he observed Bate standing outside the apartment
with the door open. Stanyer added that “[f]rom the outside, [he] could see . . . unsanitary
condition[s]: feces, urine . . .garbage.” RP at 64. And once Bate permitted him to enter the
apartment, all the clutter “made it difficult to even walk through the apartment. . . [and] [that] the
smell was so overwhelming [he] had to put [on] a . . .face mask respirator . . . to even proceed far
into the apartment.” RP at 64-65.
Ultimately, Stanyer found a total of nine deceased animals in the apartment. He also stated
that he took photographs of where he found each.2 He testified that all the animals found were in
poor condition, emaciated, and covered in fleas, with two being just “bones and a little bit of fur.”
RP at 73. The animals were then taken to the human society animal clinic for examination by a
veterinarian.
Three days later, Stanyer located Shumate at a hotel in Kelso. Shumate provided the
animals’ names and that she was the owner, but did not show remorse. Shumate also said she went
to a party in December and left the animals in her boyfriend’s care, but had yet to return to the
apartment since then. Lastly, Stanyer noted Shumate did not discuss a plan for subsequent care of
the animals after she left them in December.
2
One animal was found “barely alive” by Shumate’s sister after Bate called her in an attempt to
reach Shumate. RP at 7. The dog was taken by the sister after she and Bate dug “feces and stuff
out of the [animal’s] nose so that it could breathe.” RP at 58. Bate informed the humane society
of the dog after it was taken.
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2. Tina Melton’s Testimony
The court also heard from Officer Melton. She noted that she was working dispatch on the
day of the incident and had dispatched Stanyer to the apartment following Bate’s call. She added
that she became involved once the animals were removed and brought to the humane society for
documentation and examination.
Melton assisted Stanyer in taking photographs of the animals, noting some were just
skeleton and fur and others were intact but appeared severely emaciated. She testified that when
positioning the animals for photos, flesh and fur was “sloughing off.” RP at 86. She also testified
that all the animals were infested with fleas that were still alive and feeding on the deceased
animals.
Melton also accompanied Stanyer when interviewing Shumate at the hotel. She noted
Shumate said she had asked her boyfriend for help with the animals for the first few days she was
gone but did not have a set plan after that, nor did she ever reach out for help from the humane
society, shelters, or animal control. Lastly, Melton noted Shumate did not express concern about
the animals when questioned.
C. Shumate’s Testimony
Next, the court heard from Shumate. She stated that she went away for a week or two
around Thanksgiving in 2019, leaving the animals in the care of her boyfriend, Kenzie Lian. After
returning, she stated the animals appeared cared for. In December, she visited her parents and left
her boyfriend in charge of the animals again. She testified that she provided him with money to
buy the animals food while she was gone.
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Shumate added that Lian said he would take care of the animals after she went to the Kelso
motel upon learning she was being evicted. She said that originally, in early January, she had
brought one of the dogs with her to the motel but was later told she could not have any animals
there, so she returned them to the apartment. She continued, testifying that when she entered the
apartment in January to return the dog, there was power and heat, and all had food and water.
Shumate stated she learned of the animal’s deaths when Stanyer questioned her at the end
of January. And upon hearing the news, she was very upset to learn they were deceased.
IV. COURT’S ORAL RULING
The court issued an oral ruling. In its ruling, the court stated that it was looking to see if
Shumate’s actions were a “gross deviation” from the reasonable person standard. It highlighted
that Shumate did not inquire about the well-being of the animals, along with the photographs taken
by Stanyer showing “disorganization within the apartment; clutter . . . ; [and] filth,” stating that a
person could not have taken many steps in the apartment “without having to step on or over
something.” RP at 130. The court further stated that one could infer from the testimony and
evidence that the last time Shumate did go to the apartment, it “probably looked relatively similar
to the pictures . . . arguably minus the animals in the positions that that the animal were in.” RP
at 130.
Next, the court called attention to Shumate’s testimony that she was there in January and
indicated that everything was good and the animals were cared for by Lian, whereas a few weeks
later, the animals were deceased. The court then stated, “I don’t know how one can overlook the
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status of the apartment with the number of animals that were in that apartment, and think that was
an acceptable way to leave those animals.” RP at 132. Ultimately, the court found Shumate
criminally negligent and guilty of all 10 counts. The court did not enter written findings and
conclusions.
V. JUDGMENT AND SENTENCING
Shumate appeared for sentencing on May 9, 2022. Shumate’s attorney argued she was
indigent and requested the court strike all non-mandatory fees. The court appeared to agree, saying
it would impose only the standard fees, which were the victim crime fee and the DNA collection
fee.3 A judgment and sentence order was entered. The order assessed supervision fees.
Shumate appeals.
ANALYSIS
I. THE ENTRY INTO THE APARTMENT BY ANIMAL CONTROL WAS LAWFUL BECAUSE
BATE, DUE TO SHUMATE’S ABANDONMENT, HAD PERMISSION TO ALLOW ENTRY
Article I, section 7 of the Washington State Constitution provides that: “No person shall be
disturbed in his private affairs, or his home invaded, without authority of law.” When considering
an alleged violation of a privacy interest, Washington courts ask whether the State has
unreasonably intruded into a person’s private affairs. State v. Sweeney, 125 Wn. App. 881, 885,
107 P.3d 110 (2005).
[I]nterpretation and application of article I, section 7 requires a two-part analysis.
The first step requires us to determine whether the action complained of constitutes
a disturbance of one’s private affairs. If there is no private affair being disturbed,
the analysis ends and there is no article I, section 7 violation. If, however, a private
affair has been disturbed, the second step is to determine whether authority of law
justifies the intrusion. Authority of law may be satisfied by a valid warrant.
State v. Puapuaga, 164 Wn.2d 515, 522, 192 P.3d 360 (2008).
3
Shumate requests, and the State concedes, that the supervision fee should be stricken.
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Private affairs are not determined according to a person’s subjective expectation of privacy
but, in part, are determined by examining the historical treatment of the interest asserted. Id. But
if history does not show whether the interest is one entitled to protection under article I, section 7,
the court asks whether the expectation is one that a citizen of this state is entitled to hold. Id.; State
v. Hartman, ___ Wn. App.____, 534 P.3d 423, 432 (2023).
A warrantless search violates article I, section 7 unless it falls under one of “‘a few
jealously guarded exceptions.’” State v. MacDicken, 179 Wn.2d 936, 940, 319 P.3d 31 (2014)
(quoting State v. Afana, 169 Wn.2d 169, 176-77, 233 P.3d 879 (2010)). Voluntarily abandoned
property is such an exception to the warrant requirement. State v. Samalia, 186 Wn. App. 224,
228, 344 P.3d 722 (2015); State v. Kealey, 80 Wn. App. 162, 907 P.2d 319 (1995) (police may
search misplaced purse to determine its owner even though they know it contains contraband;
expectation of privacy is diminished). Because Shumate does not challenge specific findings of
fact, we review only the trial court’s order under article 1, section 7 de novo.4 State v. Dugas, 109
Wn. App. 592, 595, 36 P.3d 577 (2001).
Abandonment is primarily a question of intent which may be inferred from words, acts,
and other objective standards. State v. Evans, 159 Wn.2d 402, 408, 150 P.3d 105 (2007).
Therefore, the question is whether Shumate so relinquished her interest in the property that she no
longer had a reasonable expectation of privacy.
4
To be clear, the only factual issue Shumate assigns error to and briefs relates to the trial court’s
use of the wrong year in its findings; that error appears to be a scrivener’s error. The court
generally does not consider an issue that has not been briefed or argued in a meaningful way.
Ameriquest Mortg. Co. v. State Att’y Gen., 148 Wn. App. 145, 166, 199 P.3d 468 (2009), aff’d on
other grounds by Ameriquest Mortg. Co. v. Wash. State Office of Att’y. Gen., 170 Wn.2d 418, 241
P.3d 1245 (2010). Accordingly, we do not address this further.
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Shumate primarily relies on State v. Birdsong, 66 Wn. App. 534, 832 P.2d 533 (1992), for
the proposition that she did not abandon the property, so she maintained the sole undisputed
possession of the leased premises and therefore animal control’s entry into the apartment was
unlawful. Specifically, Shumate argues there was no evidence showing she planned to terminate
the lease, as she still had the keys and did not notify anyone that she planned to move out.
Contrary to Shumate’s assertions, Birdsong is distinguishable. Birdsong moved out of his
rental home weeks before the end of the lease but left furniture in the garage. Id. at 534. More
significantly, after the police were called by the landlord, but before the police had entered,
Birdsong arrived to clean the home and remove his possessions. Id. The court held that the
evidence was insufficient to show Birdsong had abandoned the property and the search and seizure
without his consent was unreasonable violation of his private affairs. Id. at 538. It explained that
Birdsong himself retained the key, kept his possessions there, and was present at the time of search
because he was going to clean the house and remove his possessions. Id. at 539.
Turning to the case before us, assuming Shumate retained her key and kept her property at
the apartment, the similarities to Birdsong end there. Unlike Birdsong, here, the facts show that
Shumate abandoned her apartment before animal control entered the premises. Despite Bate
seeing Shumate in December 2019, Bate received constant complaints from tenants regarding
animal noises in the apartment, and Bate reached out to Shumate but never received a response.
Bate also provided Shumate notice to pay or vacate twice via posting and first-class mail, but again
Shumate never responded or paid as she never received the notice. Then, after animal noises
stopped suddenly, Bate tried to reach Shumate but was unable to. Finally, when performing a
welfare check, observed obvious evidence of abandonment in the form of deceased animals, trash,
feces, and scattered debris. This evidence is a far cry from Birdsong’s active involvement in the
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subject home. The trial court did not err in concluding Shumate abandoned the apartment.
Shumate did not maintain a reasonable expectation of privacy in the apartment. Accordingly, entry
was lawful and her argument fails.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER TRIAL
Next, Shumate argues, and the State concedes, that the superior court failed to enter written
findings of fact and conclusions of law after trial pursuant to CrR 6.1(d). We accept the State’s
concession. We also conclude that, though we may in our discretion review issues even absent
findings and conclusions, the record on appeal here is insufficient to allow review. We may decline
to address an issue because the appellate record is inadequate. State v. Riley, 121 Wn.2d 22, 31,
846 P.2d 1365 (1993).
CrR 6.1(d) provides that “[i]n a case tried without a jury, the court shall enter findings of
fact and conclusions of law.” The purpose of the rule is to facilitate appellate review. State v.
Head, 136 Wn.2d 619, 622, 964 P.2d 1187 (1998). Therefore, courts have frequently “refused to
address issues raised on appeal in the absence of such findings and conclusions.” Id. at 624. Oral
rulings by the trial court do not cure the absence of formal written findings of fact and conclusions
of law. Id. at 622. Nevertheless, failure to enter written findings and conclusions is harmless
where the trial court’s oral findings sufficiently explain how the facts met the elements of the
charge as they are “‘so clear and comprehensive that written findings would be a mere formality.’”
State v. Smith, 76 Wn. App. 9, 16, 882 P.2d 190 (1994) (quoting State v. Smith, 68 Wn. App. 201,
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208, 842 P.2d 494 (1992)); Head, 136 Wn.2d at 621-23. Here, the superior court’s oral ruling is
as follows: “I don’t know how one can overlook the status of the apartment with the number of
animals that were in that apartment, and think that was an acceptable way to leave those animals.”
RP at 132.
The oral ruling is insufficient to permit review of Shumate’s assignment of error regarding
sufficiency of the evidence. Accordingly, we remand for entry of written findings and conclusions.
III. FEES
Next, Shumate argues, and the State concedes, that the superior court’s order requiring her
to pay community custody supervision fees is unauthorized under RCW 9.94A.703 and must be
stricken from the judgment and sentence. We accept the State’s concession.
RCW 9.94A.703 governs community custody conditions and outlines which fees the trial
court must impose and which it may waive. Former RCW 9.94A.703(2)(d) (2018) provided that
“[u]nless waived by the court, as part of any term of community custody, the court shall order an
offender to: . . . [p]ay supervision fees as determined by the department.” However, the statute
was recently amended. The amendment removed the waivable community custody supervision
fee condition. See RCW 9.94A.703; SECOND SUBSTITUTE H.B. 1818, 67th Leg., Reg. Sess. (Wash.
2022). Although the amendment was not effective until July 1, 2022, after Shumate filed her
appeal, Division Three of this court recently held that the amendment to RCW 9.94A.703 applies
to cases pending on appeal. State v. Wemhoff, 24 Wn. App. 2d 198, 202, 519 P.3d 297 (2022).
We agree with the reasoning in Wemhoff and adopt it here.
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Although Shumate argues that only the community custody fees should be stricken under
RAP 2.5(a), we exercise our discretion to address the DNA collection fee and victim penalty
assessment fee. Recent legislative changes eliminated the DNA collection fee unless the
defendant’s DNA was previously collected as a result of a prior conviction. LAWS OF 2023, ch.
449, § 4.
Similarly, RCW 7.68.035(1)(a), which imposes a victim penalty assessment fee “for each
case or cause of action that includes one or more convictions of a felony or gross misdemeanor,”
was also amended, allowing waiver of the fee if the superior court finds that “the defendant, at the
time of sentencing” was indigent. LAWS OF 2023, ch. 449, §1. Accordingly, the court should
reconsider the DNA collection fee and victim penalty assessment upon remand. RCW
43.43.7541(2); RCW 7.68.035(4)-(5)(b).
Accordingly, we remand with instructions to strike the supervision fees, and for the
superior court to reconsider the DNA collection fee and victim penalty assessment fee in light of
the recent statutory changes.
CONCLUSION
We conclude that the search of the apartment was lawful. We do not reach the merits of
Shumate’s challenge to the sufficiency of the evidence underlying her conviction, but instead remand
for the trial court to enter written findings and conclusions regarding the bench trial. Finally, we
remand to the trial court to (1) strike the requirement that Shumate pay community custody
supervision fees and (2) for the court to reconsider the DNA collection and victim penalty
assessment LFOs.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, J.
We concur:
Glasgow, C.J.
Price, J.
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