DocketNumber: Nos. 32382-6-II; 32418-1-II
Citation Numbers: 131 Wash. App. 579
Judges: Deren
Filed Date: 2/7/2006
Status: Precedential
Modified Date: 8/12/2021
¶1
— Steven Paulson and Troy Lee Loney appeal their convictions for first degree animal cruelty on the grounds that the trial court lacked sufficient evidence to support the conviction. In addition, Loney appeals the portion of his sentence allowing him up to 24
FACTS
I. Substantive Facts
¶2 On March 8, 2004, Anthony Flora, a substitute custodian at Wilkeson Elementary School, spotted Loney and Paulson walking a dog near the school. He watched as they tied the dog to a tree and shot it with an arrow. He then saw Loney shoot two arrows and then hand the bow to Paulson, who stepped back six or eight feet from the dog and shot at it. Flora and the school secretary called the police. After calling, Flora went back outside where he saw Loney, who again had the bow, shoot at the dog. Paulson then pulled the arrow out of the dog and handed it to Loney, who shot the dog again. Flora said he did not hear the dog bark or whimper, and he saw the dog go limp after the first shot.
¶3 Wilkeson Deputy Marshal Earl Greene responded to the school. At the scene, Flora identified Loney and Paulson as the men he saw shooting at the dog. When Marshal Greene questioned the two, they said that they had shot arrows at a bale of hay for shooting practice. They denied knowing anything about a dog.
¶4 Greene let Loney and Paulson leave but continued to investigate. When he found blood on a tree by the school, he went to Loney and Paulson’s home to further question them. At that point, Loney admitted that he and Paulson had tied the dog to the tree and shot it twice. He told Greene that they needed to put the dog down. Greene also questioned Paulson, who confessed that he and Loney shot the dog but that he did not know how many times they shot it.
¶6 Greene returned to Loney and Paulson’s house for a third time because the initial statements they had written were illegible. He asked them for additional statements, which they agreed to write. Greene read them their Miranda rights again. In Loney’s second statement, he admitted to shooting the dog and stated that he shot it once or twice, but could not remember exactly how many times. In his written statement, Paulson also admitted shooting the dog. He admitted that he shot it two to three times and that he threw the dog into the river. The dog’s body was never found.
II. Procedural Facts
¶7 On March 19, 2004, the State charged Loney and Paulson by information with one count each of first degree animal cruelty, asserting that they acted as accomplices on March 8, 2004, and unlawfully, feloniously, and intentionally inflicted substantial pain on, caused physical injury to, or killed an animal by means causing undue suffering, contrary to RCW 16.52.205(l)(b) and (c).
¶8 Loney and Paulson moved to dismiss the charge, claiming that the information was defective because the statute was vague. The court denied the motion, finding the statute was not vague and determining that the word “intent” modified both “kill” and “cause undue suffering,” which required the State to prove that Loney and Paulson intended to kill the dog and that they intended to cause it undue suffering.
¶10 At trial, Loney testified that the dog, a Siberian Husky, showed up on their front porch about a week and a half before the incident. Paulson’s father, their landlord, told them they could not have dogs in the house so Loney paid a friend to take care of the dog he already had. He said that they tried to get rid of the stray dog but they could not find anyone to take it. He and Paulson decided that they needed to put the stray down and decided to shoot it with a bow and arrow. He testified that Paulson shot it once and it went limp but, after Paulson’s first shot, Loney was not sure the dog was dead so he shot it a second time. He said that together they only shot it twice and, although he admitted that they retrieved their only two arrows from its body, he denied shooting it multiple times.
¶11 The court found Loney and Paulson guilty of first degree animal cruelty, an unranked class C felony, and sentenced them to nine months in jail. The trial court converted 30 days’ confinement to 240 hours’ community service under RCW 9.94A.680 and required, under RCW 16-.52.200(6), completion of an animal cruelty prevention program. It allowed them up to 24 months to complete the animal cruelty prevention program and the community service under court supervision. They timely appeal.
ANALYSIS
I. Evidence of Intent to Cause Undue Suffering
¶12 Loney and Paulson argue that the trial court lacked sufficient evidence to support their conviction. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime
¶13 Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
¶14 The State must prove all elements of a crime beyond a reasonable doubt. State v. Lively, 130 Wn.2d 1, 11, 921 P.2d 1035 (1996). RCW 16.52.205(l)(c) requires that the State prove that Loney and Paulson acted intentionally to inflict undue suffering and to kill the dog.
¶15 The statute does not define “undue suffering.” Thus, this court must give the term its ordinary dictionary meaning. State v. Edwards, 84 Wn. App. 5, 10, 924 P.2d 397 (1996). “Undue” means: “Excessive or unwarranted.” Black’s Law Dictionary 1563 (8th ed. 2004). And “suffer” means: “To experience or sustain physical or emotional pain, distress, or injury.” Black’s at 1474. Division One of this court has ruled that the phrase “undue suffering” in RCW 16.52.205 is not unconstitutionally vague. State v. Andree, 90 Wn. App. 917, 954 P.2d 346 (1998).
¶17 In rejecting Andree’s challenge to the statute, Division One of this court stated:
As the phrase applies only to killing an animal, the question in this case, therefore, is whether a person of ordinary intelligence would understand that killing a kitten by stabbing it nine times with a hunting knife would cause undue suffering. Evaluated in this context, the phrase gives fair notice of an objective standard of reasonableness, which is clearly within a layman’s understanding.
Andree, 90 Wn. App. at 921.
¶18 Here, the court heard eyewitness testimony that Loney and Paulson shot the dog multiple times, pulling out the arrows between shots. And Loney testified that they had only two arrows. The trial court determined that Flora’s eyewitness testimony that Loney and Paulson repeatedly shot the dog was credible because (1) he had a definite memory of the incident, (2) he was at a reliable vantage point, (3) his view was not blocked and there was sufficient light, and (4) he was not biased against Loney and Paulson. Since decisions of credibility are not subject to review, we abide by the trial court’s decision. See, e.g., Camarillo, 115 Wn.2d at 71.
¶19 When confronting the issue of intent to cause undue suffering in Andree, the court concluded: “[W]hile specific intent cannot be presumed, a [fact finder] may infer Andree intended to cause the kitten undue suffering where his ‘conduct plainly indicates the requisite intent as a matter of
¶20 It is difficult to imagine that any dog, especially one who had followed Loney and Paulson around for almost two weeks, would not suffer unduly with such a killing scheme. The means show an intent to cause undue suffering because they would not have continued to shoot at it if it had died with the first shot. Furthermore, pulling the arrows out of a living dog to shoot it repeatedly aggravated the suffering. It was certainly within Loney’s and Paulson’s abilities to understand that these repeated actions intentionally inflicted suffering in the course of killing the dog. Thus, the trial court could reasonably conclude that they possessed the requisite intent. See Andree, 90 Wn. App. at 923.
¶21 Interpreting this evidence in a manner most favorable to the State, the record clearly establishes sufficient evidence of Loney’s and Paulson’s intent to cause undue suffering and their guilt under RCW 16.52.205(1).
II. Loney’s Sentence
¶22 A trial court may only impose a statutorily authorized sentence. State v. Phelps, 113 Wn. App. 347, 354-55, 57 P.3d 624 (2002). If the trial court exceeds its sentencing authority, its actions are void. Phelps, 113 Wn. App. at 355. A defendant cannot extend the trial court’s sentencing authority by agreeing to a punishment in excess of the statute. Phelps, 113 Wn. App. at 355. “A sentence imposed without statutory authority can be addressed for the first time on appeal, and this court has both the power and the duty to grant relief when necessary.” State v. Julian, 102 Wn. App. 296, 304, 9 P.3d 851 (2000).
¶24 Neither Loney nor Paulson challenge the trial court’s sentence requiring completion of an animal cruelty prevention education program under RCW 16.52.200(6).
¶25 Chapter 9.94A RCW governs felony sentencing in Washington. RCW 9.94A.505(1) states: “When a person is convicted of a felony, the court shall impose punishment as provided in this chapter.” And under RCW 9.94A.505(2)(b), for crimes without a standard sentencing range: “[T]he court shall impose a determinate sentence which may in-
¶26 But the trial court did not sentence Loney to community custody under RCW 9.94A.505. Rather, it sentenced Loney under RCW 16.52.200(6), the specific statute addressing an animal cruelty conviction, and converted 30 days of confinement to community service under RCW 9.94A.680. The court imposed a maximum of 24 months’ court supervision as an alternative to confinement in order to give Loney enough time to complete his animal cruelty prevention program and 240 hours of community service following his release from jail.
¶27 RCW 9.94A.680 specifically provides for alternatives to confinement, which the trial court relied on in converting 30 days’ confinement to 240 hours of community service. RCW 9.94A.680(2) authorizes the court to impose community restitution that must be completed in not more than 24 months. Therefore, it was not error for the trial court to give Loney up to 24 months to complete the animal cruelty prevention program and his community service hours. Furthermore, it is clear from the face of the judgment and sentence that the court supervision portion of the sentence will be satisfied when Loney completes and presents evidence that he has completed both the community service and the animal cruelty prevention program.
¶28 Loney also argues that RCW 16.52.200(6) applies only to misdemeanors and gross misdemeanors and therefore does not apply to his class C felony conviction for animal cruelty. The State counters that RCW 16.52.200 grants the court the power to require all defendants, whether convicted of a misdemeanor, gross misdemeanor, or class C felony under chapter 16.52 RCW, to complete an animal cruelty program. We agree with the State. Under the statute, the court may impose participation in an animal cruelty prevention course for any conviction under chapter 16.52 RCW, including class C felonies for animal cruelty.
¶30 Accordingly, we affirm.
Houghton and Hunt, JJ., concur.
Court supervision allows the sentencing judge to monitor compliance and progress by scheduling review hearings. No agency is involved in this type of supervision.
Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State initially cross-appealed the trial court’s ruling requiring the State to prove that Loney and Paulson intended to kill the dog and intended to use means that would cause undue suffering. The State subsequently withdrew its cross appeal. Thus, we evaluate the sufficiency argument for reasonable inferences from the State’s evidence that Loney and Paulson intended to kill the dog and intended to cause it undue suffering.
RCW 16.52.200(6) states:
As a condition of the sentence imposed under this chapter or RCW 9.08.070 through 9.08.078, the court may also order the defendant to participate in an available animal cruelty prevention or education program or obtain available psychological counseling to treat mental health problems contributing to the violation’s commission. The defendant shall bear the costs of the program or treatment.
The term referring to that portion of a sentence following total confinement has changed over time from “community restitution” to “community supervision” to “community custody,” which was the appropriate term when Loney and Paulson were sentenced. RCW 9.94A.505(2)(b).