State Of Washington, Res/cross-app. v. Abdoul Aziz Jallow, App/cross-res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 79417-5-I
)
Respondent, )
) DIVISION ONE
v. )
)
ABDOUL AZIZ JALLOW, )
) PUBLISHED OPINION
Appellant. )
)
MANN, C.J. — Abdoul Jallow appeals his conviction of two counts of animal
cruelty in the first degree. He contends that (1) the evidence was insufficient to convict
him of animal cruelty, (2) the to-convict instruction omitted the element of causation,
thus relieving the State of its burden of proof, and (3) because animal cruelty is an
alternative means crime, violation of the unanimous jury verdict requires reversal of one
of the animal cruelty convictions. We agree that the to-convict instruction was
insufficient, and reverse.
FACTS
After receiving a report concerning the condition of sheep and goats on a
property outside of Marysville on October 19, 2016, animal control officer Chad Davis
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conducted a welfare check on the animals. On his first visit to the property, Davis
observed several sheep and goats that had quality hay and water. Davis made two
other undocumented stops where he observed hay from the road.
Davis’s next documented visit was on November 14, 2016. Davis observed that
there was no food or water available to the animals, although there were some
remnants of hay visible. Davis saw a sheep lying on its side, appearing lifeless. Upon
closer inspection, Davis confirmed the sheep was deceased. Davis saw another sheep
lying inside the shed that would not get up and come to the fence with the other
animals.
Davis tracked down the owner of the property using a license plate provided by a
neighbor, which associated with a nearby residence. Davis went to the residence and
spoke with Jallow’s wife, explaining that one of the sheep needed immediate medical
attention, and another sheep was deceased. She informed Davis that Jallow was out of
the state. Davis left a voicemail for Jallow informing him of the condition of the animals.
Davis did not seize the carcass or enter the property because he did not have a
warrant.
On December 5, 2016, Davis responded to another report from Jallow’s
neighbor. The neighbor had taken a tan female sheep from the field and wrapped it in a
blanket. The sheep appeared lifeless and could not hold up its head. Davis took the
tan female sheep to a veterinarian immediately.
The veterinarian, Dr. Tim Cuchna, found that the sheep was breathing, but was
nonresponsive to stimulation. Dr. Cuchna determined that the sheep was hypothermic,
because its “body condition was very poor, resulting in it not being able to maintain its
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body temperature . . . it was wet.” He explained that not having enough food can result
in the low temperature. On a scale of 1 to 5, where 1 is severely emaciated and 5 is an
extremely obese animal, Dr. Cuchna rated the sheep as “a 1 at most.” Dr. Cuchna
opined that the tan female sheep had not been getting enough nutrition “over a fair
amount of time.” He also determined that the sheep was moderately dehydrated and
suffering from parasites. Dr. Cuchna opined that the sheep’s poor health was a result of
both parasites and poor nutrition, and he performed a humane euthanasia on the
sheep.
Davis left another voicemail for Jallow, explaining that he had one of the sheep at
the vet, and that Jallow needed to contact him immediately. When Davis spoke to
Jallow, he informed him that the sheep had been euthanized. Jallow told Davis that his
cousin, Sheriff Jabang, would sell the other animals.
Davis returned to Jallow’s field on December 6, 2016, and observed that the
animals had no food or access to water, as the trough was iced over. He fed them with
food he had brought from his personal barn and broke the ice. He examined a goat and
a sheep, and determined that the goat was emaciated. Davis posted an orange 3x5
card instructing the owner to contact him immediately. Davis returned the next two days
to provide food and water to the animals, as there was no food out for them and the
water iced over again. He attempted to contact Jallow but was unsuccessful.
On December 9, 2016, Davis returned with a search warrant to seize the
animals. He discovered that a small brown sheep that had been alive the previous day
was now deceased.
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Davis took the deceased small brown sheep, and seized a live goat and three
live sheep. Davis took the animals to the veterinary hospital, where Dr. Travis McKinzie
examined them. Dr. McKinzie determined that the goat was likely anemic, had an
elevated heart rate, and was very thin. He determined that the first living sheep was a
body condition 3, on a scale of 1 to 9, with 1 being severely emaciated and 9 being
extremely obese. The second sheep was also a 3 out of 9 on the body condition scale,
and its mucous membranes were slightly pale, which can indicate anemia. The third
sheep was a 3 ½ to 4 on the body condition scale.
Dr. McKinzie examined the deceased small brown sheep and determined that it
was between a 1 and 1-1/2 on the body condition scale. Dr. McKinzie observed that the
sheep had no solid content in its stomach and that there was evidence of parasites in
the liver. He determined that the sheep’s case of death was malnutrition, resulting from
a combination of disease causing the loss of nutrition, and the lack of adequate nutrition
coming in. He opined that if an animal is receiving adequate nutrition, parasites are less
likely to be an issue, or be fatal. Dr. McKinzie concluded that if the group of animals
had limited access to feedstuff, the larger animals would take as much as they could,
fighting off and excluding the smaller animals.
Jallow was charged with three counts of first degree cruelty to animals and one
count of bail jumping. 1 The small brown sheep formed the basis for count 1, and the tan
female sheep formed the basis for count 3. 2 At trial, Jallow testified that he owned the
animals, he fed them every morning, and he never went two days without checking on
1 The bail jumping charge was a result of Jallow’s failure to appear when he was charged with
first degree animal cruelty on March 3, 2017.
2 The deceased sheep observed during the November 14, 2006, visit formed the basis for count
2, which the State later dismissed as the sheep was never examined by a medical professional.
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the animals. Jallow said that he left on an extended trip to Arizona in October 2016,
and arranged for Jabang to care for the animals.
Jallow said that after Davis originally contacted him in November, and his wife
contacted him, he checked in with Jabang and confirmed that he was caring for the
animals. Before leaving, Jallow had no concerns about leaving the animals in Jabang’s
care. He testified that “I was under the impression that they were in good hands until I
found out that they were not.”
Because Davis continued contacting him, Jallow testified that he attempted to
sell the animals via Craigslist. He relied on Jabang to execute the sale and believed
that Jabang sold the animals. When Jallow learned that no sale occurred, he then
posted the animals on Craigslist for free. Jallow testified that he cut his trip short
because of the animals. He returned from his trip the morning of December 8, 2016,
but he did not visit the field until the evening of December 9, 2016.
Jabang testified that he gave the animals food and water but he was unsure how
long Jallow was gone. He testified that Jallow called him to take care of the deceased
sheep in November but that his truck broke down and he was unable to remove the
deceased sheep. Jabang did not remember how many times he went to the field to
care for the animals, but maintained that when the animals were under his care, they
were always well fed and watered.
A jury convicted Jallow of first degree cruelty to animals on count 1 (small brown
sheep) and count 3 (tan female sheep), and of bail jumping. Jallow appeals.
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ANALYSIS
A. Sufficiency of the Evidence
Jallow first argues that the evidence was insufficient to convict him of animal
cruelty because the State failed to prove that Jallow acted with negligence. We
disagree.
A sufficiency of the evidence challenge admits the truth of the State’s evidence
and accepts the reasonable inferences from that evidence. State v. O’Neal, 159 Wn.2d
500, 505, 150 P.3d 1121 (2007). Evidence is sufficient if, “‘after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” State v. Green, 94 Wn.2d
216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). Because credibility determinations are made
by the trier of fact, we defer to the trial court on issues of conflicting testimony, credibility
of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d
821, 874-75, 83 P.3d 970 (2004).
The State charged Jallow with animal cruelty in the first degree:
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.
RCW 16.52.205(2).
A person acts with criminal negligence when they fail “to be aware of a substantial risk
that a wrongful act may occur and his or her failure to be aware of such substantial risk
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constitutes a gross deviation from the standard of care that a reasonable person would
exercise in the same situation.” RCW 9A.08.010(1)(d).
Jallow contends that he was not criminally negligent because he arranged to
have Jabang care for the animals. However, his lack of communication with Jabang
demonstrated direct criminal negligence. Although Jallow could have initially believed
that Jabang was properly caring for the animals, once Davis and his wife notified him
that one sheep was deceased, and another was in need of immediate medical attention,
Jallow was on notice that Jabang was not properly caring for the animals. However,
Jallow continued to rely on Jabang. Even after Jallow was notified by Davis that
another one of his sheep was euthanized, Jallow continued to rely on Jabang to sell the
animals, which Jabang failed to do. Posting an advertisement that the animals were
free to take did not allow Jallow to escape fault. He did not follow up with Jabang, his
wife, or Davis to ensure that the animals had actually been claimed, or were receiving
food and water. A reasonable person in this situation would have found an alternative
caretaker for the animals.
Jallow was also directly negligent when he failed to immediately attend to the
animals upon his return home. While Jallow testified that he cut his trip short out of
concern for his animals, his actions do not reflect this sentiment. Although Jallow
returned home on December 8, 2016, he did not check on the animals until the next
evening. By that point, the small brown sheep that had been alive on December 8,
2016, had died, and Davis had seized the remaining animals.
Jallow argues that because the animals were not in his exclusive care, he was
not negligent. He relies on State v. Zawistowski, 119 Wn. App. 730, 737, 82 P.3d 698-7-
No. 79417-5-I/8
(2004), State v. Peterson, 174 Wn. App. 828, 855, 301 P.3d 1060 (2013), and State v.
St. Clare, 198 Wn. App. 371, 381, 393 P.3d 836 (2017), cases in which involved the
owners directly not providing food or water to their animals. Jallow ignores that as the
owner of the animals, he was still responsible for their care in his absence. Although
Jallow himself was not neglecting to feed and water the animals, he was directly
responsible for not ensuring that his animals were properly cared for. Because any
rational trier of fact could have found that Jallow acted with criminal negligence,
sufficient evidence supported his conviction.
B. To-Convict Instruction
Jallow next argues that he was denied due process because the to-convict
instruction for animal cruelty omitted an essential causation element: “as a result
causes” the animal to suffer or die. We agree.
This court reviews to-convict jury instructions de novo. State v. Fisher, 165
Wn.2d 727, 754, 202 P.3d 937 (2009). A jury instruction is sufficient if it correctly states
the law, is not misleading, and permits counsel to argue their theory of the case. State
v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). The jury instructions must inform the
jury that the State bears the burden of proving every essential element of a criminal
offense beyond a reasonable doubt. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245(1995). A to-convict instruction must contain all of the essential elements of the crime
because it serves as “yardstick” for the jury to measure innocence or guilt. State v.
Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). Failure to instruct the jury on all
essential elements relieves the State of its burden of proving every element of the crime
beyond a reasonable doubt. In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 136,
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385 P.3d 135 (2016). “This is reversible error unless the court is convinced, beyond a
reasonable doubt, that the error did not contribute to the verdict.” Caldellis, 187 Wn.2d
at 136. 3
There is no pattern jury instruction for the crime of animal cruelty. As a result,
trial courts should use the language of the statute, where the law governing the case is
expressed in the statute, when instructing the jury. State v. Hardwick, 74 Wn.2d 828,
830, 447 P.2d 80 (1968). RCW 16.52.205(2) 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.
(Emphasis added).
“Elements of a crime are the constituent parts of a crime, usually consisting of
conduct, knowledge, and causation.” Caldellis, 187 Wn.2d at 136 (citing Fisher, 165
Wn.2d at 754). Washington case law recognizes the statutory elements of a crime as
essential elements. Fisher, 165 Wn.2d at 754. In St. Clare, we recognized four
essential elements for the crime of first degree animal cruelty: (1) the specific act that
must be proven, (2) the state of mind, (3) the result of the act on the animals, and (4)
the location. 198 Wn. App. at 377. While St. Clare examined the mental state required
for first degree cruelty to animals, this court still held that a to-convict instruction
3 Error with a jury instruction may be raised for the first time on appeal if it is a manifest error
affecting a constitutional right. State v. Salas, 127 Wn.2d 173, 182, 897 P.2d 1246 (1995). The omission
of an element from the to-convict instruction is of “sufficient constitutional magnitude to warrant review
when raised for the first time on appeal.” State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005). “It cannot
be said that a defendant has had a fair trial if the jury must guess at the meaning of an essential element
of a crime or if the jury might assume that an essential element need not be proved.” Smith, 131 Wn.2d
at 263.
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included each statutory element when the language “as a result,” was in the instruction,
thus linking the defendant’s negligence to the result of the animal’s suffering. St. Clare,
198 Wn. App. at 378.
For Jallow, the court instructed the jury:
To convict the defendant of the crime of First Degree Animal
Cruelty as charged in Count 1, each of the following elements of the crime
must be proved beyond a reasonable doubt:
(1) That on or about the 19th day of October, 2016, through on or
about the 9th day of December, 2016 the defendant acted with
criminal negligence in starving or dehydrating an animal, to wit: a
small brown sheep;
(2) the animal suffered substantial and unjustifiable physical pain
that extends for a period sufficient to cause considerable suffering,
or death;
(3) That the defendant was not authorized by law to commit this
act; and
(4) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty. [4]
Jallow argues that the instruction omits the language “as a result causes,” which
is an essential, causation element of the crime. We agree. The instruction given in
Jallow’s case lacked the causation element of the crime because it omitted the
language “as a result.” Without this language, the jury was not properly instructed to
convict Jallow only if the sheep suffered substantial and unjustifiable physical pain as a
result of Jallow’s criminal negligence. Under the instruction as given, Jallow was unable
4 The instruction for count 3 of animal cruelty is identical, except that it refers to a “tan female
sheep.”
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to argue his theory of the case—that it was Jabang’s criminal negligence, not Jallow’s
criminal negligence, which resulted in the suffering of the animals. The omission of the
causation element is significant because it is at least reasonably debatable whether
Jabang’s negligence was a superseding cause of the sheep’s suffering. Because the
to-convict instruction lacked the statutory language outlining the essential element of
causation, the instruction was insufficient.
“When applied to an element omitted from, or misstated in, a jury instruction, the
error is harmless if that element is supported by uncontroverted evidence.” State v.
Brown, 147 Wn.2d 330, 341, 58 P.3d 88 (2002). To hold any error harmless, we need
to conclude that the jury verdict would be the same absent any error. Brown, 147
Wn.2d at 341. Because the evidence presented at trial provided a reasonable basis
that it was Jabang’s actions, and not Jallow’s criminal negligence, which resulted in the
suffering of the animals, the error is not harmless. A reasonable juror could have found
that Jallow’s negligence did not result in the substantial and unjustifiable physical pain
of either sheep, yet still could have convicted Jallow under the instruction given. For
these reasons, the error was not harmless and the incomplete to-convict instruction
requires reversal.
C. Unanimous Jury Verdict
Jallow also contends that first degree animal cruelty is an alternative means
crime and because there was no particularized expression of jury unanimity on each of
the alternative means reversal of one of the animal cruelty convictions is required.
Although we reverse based on the instructional error, the State makes a compelling
argument asking us to hold that RCW 16.52.205(2) is not an alternative means crime.
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No. 79417-5-I/12
We agree with the State, and hold that RCW 16.52.205(2) is not an alternative means
crime.
Criminal defendants in Washington are entitled to a unanimous jury verdict.
State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). If “the crime
charged can be committed by more than one means, the defendant does not have a
right to a unanimous jury determination as to the alleged means used to carry out the
charged crime or crimes should the jury be instructed on more than one of those
means.” State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007). But in order to
safeguard the defendant’s right to unanimity, “substantial evidence of each of the relied-
on alternative means must be presented.” Smith, 159 Wn.2d at 783. However, when
the instruction involves alternatives that are characterized as a “means within a means,”
the alternative means doctrine does not apply. Smith, 159 Wn.2d at 783.
Alternative means crimes provide that the proscribed criminal conduct may be
established by a variety of distinct acts, each which amounts to the same crime. Smith,
159 Wn.2d at 784. Typically, “such crimes are set forth in a statute stating a single
offense, under which are set forth more than one means by which the offense may be
committed.” Smith, 159 Wn.2d at 784. In Smith, for example, our Supreme Court
recognized that the second degree criminal assault statute articulated a single criminal
offense but then provided six separate subsections by which the offense could be
committed. RCW 9A.36.011-.031. The court concluded that each of the six
subsections represented an alternative means of committing the crime of second
degree assault. Smith, 159 Wn.2d at 784. The court declined, however, to hold that the
common law definitions of assault used in the definition instruction also constituted
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alternative means requiring substantial evidence to support each alternative definition.
Smith, 159 Wn.2d at 786-787. Instead, the court concluded that the various common
law definitions of assault “merely define an element of the crime charged and, thereby,
give rise to a ‘means within a means’ scenario” that did not trigger jury unanimity
protections. Smith, 159 Wn.2d at 787.
Jallow contends that first degree animal cruelty under RCW 16.52.205(2) is an
alternative means crime that may be committed by the alternative means of starvation,
dehydration, or suffocation. Jallow bases his argument on our decisions in Peterson
and St. Clare. The State encourages us to reexamine St. Clare and Peterson and hold
that first degree animal cruelty is not an alternative means crime. We agree with the
State.
In Peterson, the defendant was convicted of six counts of animal cruelty in the
first degree for starving and dehydrating horses. Peterson, 174 Wn. App. at 844. While
rejecting the defendant’s argument that substantial evidence did not show that the
horses were suffering from dehydration, this court held that under RCW 16.52.205(2),
“starvation, dehydration, and suffocation are different ways of committing the crime of
animal cruelty in the first degree and are not merely descriptive or definitional but,
rather, separate and essential terms of the offense.” Peterson, 174 Wn. App. at 851.
In St. Clare, the defendant, who was charged with 10 counts of animal cruelty
toward cats, argued that the evidence was insufficient to one of the alternative means—
either starvation or dehydration. St. Clare, 198 Wn. App. at 379. This court rejected
this argument, and concluded that “regardless of whether RCW 16.52.205(2)
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establishes starvation and dehydration as alternative means, the evidence was
sufficient to support St. Clare’s conviction.” St. Clare, 198 Wn. App. at 381-82.
The concurrence in St. Clare explained that both Peterson and the majority’s
reliance on Peterson was erroneous because it confused means within a means for
actual alternative means. St. Clare, 198 Wn. App. at 386 (Dwyer, J., concurring). As
the concurrence explained:
The alternative means of committing the crime of animal cruelty in the first
degree are three in number. They are set out in subsections 1, 2, and 3 of
former RCW 16.52.205. 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.
This court, in Peterson, got it wrong. The majority opinion perpetuates the
error.
St. Clare, 198 Wn. App. at 385-86.
We agree with the concurrence in St. Clare that Peterson was wrongly decided.
We now hold that the alternative means doctrine does not apply to animal cruelty in the
first degree. RCW 16.52.205 includes three subsections with alternative means of
committing animal cruelty in the first degree. As in Smith, each subsection contains a
means within a means of accomplishing the crime. RCW 16.52.205(2) provides an
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alternative means of committing animal cruelty: depriving the animal of the necessities
of life. 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.
Reversed.
WE CONCUR:
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