State v. Peterson

• Decision Date: 20 May 2013
• Docket Number: No. 66876–5–I.,66876–5–I.
• Parties: STATE of Washington, Respondent, v. Mary Dawn PETERSON, Appellant.
• Court: Washington Court of Appeals

174 Wash.App. 828

301 P.3d 1060

STATE of Washington, Respondent,

v.Mary Dawn PETERSON, Appellant.

No. 66876–5–I.

Court of Appeals of Washington, Division 1.

May 20, 2013.

Washington Appellate Project, Attorney at Law, Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Appellant.

Charles Franklin Blackman, c/o Snohomish County Pros Atty, Everett, WA, for Respondent.

Adam Phillip Karp, Animal Law Offices of Adam P. Karp, Bellingham, WA, Amicus Curiae on behalf of Animal Legal Defense Fund.

SCHINDLER, J.

[174 Wash.App. 832]¶ 1 To convict a person of animal cruelty in the first degree, the State must prove beyond a reasonable doubt that acting with criminal negligence, the defendant starves, dehydrates, or suffocates an animal resulting in substantial and unjustifiable physical pain extending over a period of time sufficient to cause considerable suffering or death. Mary Dawn Peterson appeals her conviction of six counts of animal cruelty in the first degree. Peterson asserts that as applied, the first degree animal cruelty statute is unconstitutionally vague. Peterson also contends starvation and dehydration of an animal are alternative means of committing the crime and substantial evidence does not support the alternative means of dehydration. Peterson further contends the court did not have authority to order her to reimburse Snohomish County for the costs incurred in caring for the horses. We hold that as applied, the first degree animal cruelty statute is not void for vagueness. We also hold that starvation and dehydration are alternative means of committing the crime of animal cruelty in the first degree, but sufficient evidence supports the alternative means of dehydration, and the court had authority to require Peterson to pay for the costs of caring for the animals under RCW 16.52.200(6). Accordingly, we affirm.

FACTS

¶ 2 In 2005, Mary Dawn Peterson and her spouse Ryan Peterson moved to the United States from Canada and started a horse boarding business in Sultan. In early 2009, Peterson owned four horses and decided to start a business breeding racehorses. In March 2009, Peterson purchased two brood mares. In April, she acquired a 10-year-old thoroughbred mare named Tyme. Peterson also acquired another horse and her foal.

¶ 3 Tyme suffered from chronic laminitis, a painful foot condition. The previous owners provided Peterson with a July 2008 letter from a veterinarian stating that Tyme is “overall in good health, her laminitis is being well-managed, she walks quite comfortably, and she seems happy.”

¶ 4 Peterson asked her farrier Douglas Serjeant to examine Tyme. Serjeant testified a farrier gives advice about the health of a horse because “the feet tell you how sick the animal is and when it's getting sick.” Serjeant told Peterson “we can fix” Tyme and suggested taking Tyme off all medications and giving the horse hay, barley, and sea salt.

¶ 5 Peterson kept the horses at a boarding facility in Sultan. When the owners decided to stop boarding horses, Peterson started looking for property to lease.

Borchardt Property: April to June 2009

¶ 6 In April 2009, Peterson rented a 3.5–to 4–acre field in Sultan from Rock Borchardt. Borchardt lived nearby and told Peterson he did not want any responsibility for “feeding [the horses], watering them or anything.” Borchardt told Peterson that “four [horses] worked fine, because if you moved them around, you wouldn't run out of grass.”

¶ 7 Horses consume two to three percent of their ideal body weight per day. A horse with an ideal weight of 1,100 pounds requires approximately 22 to 33 pounds of hay per day. Thoroughbreds often require more food, sometimes two-thirds of a bale of hay, or six to 10 flakes a day. A flake is about four or five pounds of hay.

¶ 8 The amount of food a horse needs also depends on the quality and nutritional value of the food. Local grass hay grown in Western Washington has less protein and is considered to be lower quality. Higher quality hay is grown in Eastern Washington. Because of the lower nutritional and caloric value, when a horse is fed exclusively local grass hay from Western Washington, owners often double the amount of hay. Owners also often feed their horses alfalfa, which has a higher nutritional value. An average horse requires six to 10 gallons of water a day.

¶ 9 Borchardt said that within the first couple weeks, the horses ate the grass down to the dirt, and he called Peterson to tell her there was no food for the horses. Borchardt testified that he only saw Peterson come to the property two or three times to feed the horses small amounts of hay.

¶ 10 By June, Peterson was keeping 12 horses on the property. Borchardt testified that he frequently called Peterson expressing concern about the lack of food and water for the horses. Borchardt said he “got extremely upset” when he saw 10 horses standing near “the watering dish” on a 100–degree day and the dish was “bone dry.” Borchardt gave the horses water and immediately called Peterson to tell her that she “need[ed] to take care of [her] horses and feed and water regularly.”

¶ 11 Borchardt testified that he had to refill the water trough “more than just one time” and called “numerous times” to tell Peterson she needed to fill the trough and give the horses water. Peterson told Borchardt that the horses “didn't need that much water because they got most of their water through grass.” Because he was so “upset about the way the horses were taken care of,” Borchardt told Peterson she had to “come take care of your horses or get them off my property.”

Trout Farm Road Property: June to September 2009

¶ 12 At the end of May, Peterson leased approximately 2.5 acres of property located on Trout Farm Road near Sultan. Peterson used electric fencing to create different enclosures for the horses. In early June, one of the brood mares gave birth to a foal, and Peterson acquired another “orphan” foal.

¶ 13 Janet Auckland could see the property Peterson rented from her house on Trout Farm Road. Auckland testifiedthat at first, Peterson kept five or six horses on the property. Auckland said that within a week, the tall grass on the property was gone, leaving nothing but dirt, and “[t]here wasn't anything for them to survive on, nothing.” Auckland testified that when she returned from vacation on July 5, there were 12 to 13 horses on the property, quite a few “were very skinny,” and the mare named Tyme was barely moving and had no food or water.

Quite a few of them, their ribs and their bones are showing.... There was a mare that—She would go—She would be up walking around, barely moving for maybe two or three days. And then she'd lay down, and she would be down for four days. And so I would get out my binoculars to see what was going on over there. And I never saw [Peterson] feed the horse. I never seen any water given to the horse. And the horse didn't get up.

And then just by probably pure thirst, she would get up and get herself to a bucket about that big around, about that deep (indicating), and look for water. And there was usually no—I never saw her drink anything out of there.

¶ 14 Auckland testified that the horses had no shelter from the heat and during the month of July, the temperature often reached 108 degrees. Auckland testified that Peterson did not use a trough for water but “a little bucket, ... not even a five-gallon bucket.” Auckland said that during the summer, a man named “Nick” would “show up about every two weeks” and that another man filled a bucket with about “30 seconds of water” every two days.

¶ 15 Auckland said that a stallion received good care, getting alfalfa and water, but that the other horses would get “maybe” a flake or two of hay each day and not enough water.

I did notice that there's a solid wood fence, and it was back—And it was back by some trees that line—That her—That the property was lined. And she kept a stud back there. And she would take very good care of him. He got alfalfa, and he got fed water. She gave him good attention.

But the other horses that were out in the other parts of the field, they were lucky if—I observed them only getting maybe— [174 Wash.App. 836]12 or 13 of the horses would only get maybe a flake or two of hay, and they were all—The all had to try and survive on that.

¶ 16 Auckland also testified about a horse Peterson kept in a metal pen near the road. Auckland said that during the eight or nine days the horse was in the pen, “I never saw water or food given to her during the day. And when it was hot, there's no shelter. There was nothing for this horse to get out of the heat. And it would just pace around in that—That corral.”

¶ 17 Snohomish County Animal Control received several complaints from an animal welfare organization and neighbors about the condition of the horses at the Trout Farm Road property. On June 24, Snohomish County Senior Animal Control Officer Paul Delgado went to the Trout Farm Road property. Officer Delgado said there were 11 horses on the property. Officer Delgado was concerned about the condition of the horses, and saw only one and one-half bales of alfalfa on the property.

After I got to see what was going on here, I looked at the other animals on the property. There were two other—Approximately two other horses that had me concerned, because they were not yet to this degree [of poor physical condition] but they were a little similar. I automatically started looking to see if there was feed on the property. I saw—I counted like a bale and a half of alfalfa.

¶ 18 Officer Delgado was very concerned about three of the horses, “but the one that really grabbed my attention and concern” was Tyme. Officer Delgado testified that Tyme's bones were prominent and protruding, there were abrasions on the mare's side and back, she limped badly, and there was a large football-sized mass between her front legs. Officer Delgado posted a notice on the empty trailer located on the...