State v. Paulson

Decision Date07 February 2006
Docket NumberNo. 32418-1-II.,No. 32382-6-II.,32382-6-II.,32418-1-II.
Citation131 Wn. App. 579,128 P.3d 133
PartiesSTATE of Washington, Respondent and Cross-Appellant, v. Steven Lee PAULSON, Appellant and Cross-Respondent. State of Washington, Respondent and Cross-Appellant, v. Troy Lee Loney, Appellant and Cross-Respondent.
CourtWashington Court of Appeals

Lise Ellner, Attorney at Law, Vashon, WA, Linda J. King, Attorney at Law, Tacoma, WA, for Appellant.

Todd Andrew Campbell, Kathleen Proctor, Pierce Co. Pros.Attorneys Office, Tacoma, WA, for Respondent.

VAN DEREN, A.C.J.

¶ 1Steven 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 months to complete an animal cruelty prevention education class and 240 hours of community service under RCW 9.94A.680, with court supervision.1Finding no error, we affirm.

FACTS
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's 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.

¶ 5 Greene testified that at that point he did not know whether a crime had been committed, so he asked Loney and Paulson to fill out written statements.The following day Greene returned to retrieve the statements.He determined that the two had committed a crime, so he administered Miranda2 warnings and continued to talk to them.But he did not arrest them at that time.

¶ 6 Greene returned to Loney's 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.

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 to, caused physical injury to, or killed an animal by means causing undue suffering, contrary to RCW 16.52.205(1)(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.

¶ 9The court held a CrR 3.5 hearing on the statements Loney and Paulson made before and after they received Miranda warnings from Greene.The court denied their motion to suppress and allowed the State to introduce the statements.Loney and Paulson waived their right to a jury trial.

¶ 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.

¶ 11The 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 beyond a reasonable doubt.State v. Salinas,119 Wash.2d 192, 201, 829 P.2d 1068(1992)."A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom."Salinas,119 Wash.2d at 201, 829 P.2d 1068.Circumstantial evidence and direct evidence are equally reliable.State v. Dejarlais,88 Wash.App. 297, 305, 944 P.2d 1110(1997), aff'd,136 Wash.2d 939, 969 P.2d 90(1998).

¶ 13 Credibility determinations are for the trier of fact and are not subject to review.State v. Camarillo,115 Wash.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 Wash.App. 410, 415-16, 824 P.2d 533(1992).

¶ 14The State must prove all elements of a crime beyond a reasonable doubt.State v. Lively,130 Wash.2d 1, 11, 921 P.2d 1035(1996).RCW 16.52.205(1)(c) requires that the State prove that Loney and Paulson acted intentionally to inflict undue suffering and to kill the dog.3It is not disputed that Loney and Paulson intentionally killed the dog.But they argue that (1)they did not intentionally cause undue suffering and (2) that they did not cause undue suffering.Their arguments are unpersuasive.

¶ 15The statute does not define "undue suffering."Thus, this court must give the term its ordinary dictionary meaning.State v. Edwards,84 Wash.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'Sat 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 Wash.App. 917, 954 P.2d 346(1998).

¶ 16The defendant's acts in Andree are remarkably similar to Loney's and Paulson's.Andree killed a kitten by stabbing it nine times.Andree,90 Wash.App. at 919, 954 P.2d 346.Andree argued that RCW 16.52.205 was unconstitutionally vague "because the statute does not proscribe due suffering, and because it does not indicate how much suffering would be either excessive or immoderate when causing ... death, a person of common intelligence must guess how much suffering would be unusual when committing one of the proscribed acts."Andree,90 Wash.App. at 921, 954 P.2d 346.

¶ 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 Wash.App. at 921, 954 P.2d 346.

¶ 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 only had 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 Wash.2d at 71, 794 P.2d 850.

¶ 19 When confronting the issue of intent to cause undue suffering in Andree,the court concluded: "[W]hile specific intent cannot be presumed, a [factfinder]...

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